The concept of “hostile workplace” appears to be at the heart of Salesforce announcing they will fund the relocation of any employee that finds the new Texas law restricting abortion objectionable. It is interesting that Benioff, Salesforce’s president, didn’t just apply this to female employees and that the initial release didn’t specify Texas but “any State.”
While, typically, talking about any company making a statement like this wouldn’t indicate a potential trend yet, Salesforce is a company that instruments employees and customers at scale, making them far more likely to be the proverbial “canary in a coalmine” concerning employee care issues.
What also makes this worth watching is that the Texas law potentially turns employees against employees, seemingly authorizing a $10K bounty for reporting on a peer seeking an abortion. The related behavior would seem to fit the definition of hostile workplace action. The EEOC section that would seem to apply is: “Unwelcome conduct, or harassment, is based on race, sex, pregnancy, religion, national origin, age, disability or genetics.” You could also argue that this section might apply as well: “Conduct is severe enough that the environment becomes intimidating, offensive or abusive.” If other employees are being paid to sue you for your pregnancy decisions, that would be both intimidating and offensive to the female employee at risk. The threat of being turned in would undoubtedly be unwelcomed conduct and potential harassment based on pregnancy.
Politically charged Hostile Workplace actions can damage the brand significantly, tend to go viral, and with something as broad as a state law could certainly meet the standard of a class action. Let’s talk about the risks associated with a law like this, the weight of Salesforce’s action, and whether you should implement a similar policy this week.
Risks from Texas Abortion Law
The Texas law, which gives individuals the right to take proactive action and benefit financially, is a novel approach to law. There isn’t much precedence to look back on to assess the related risks. This law isn’t a company policy, but company policy is subordinate to state law; the EEOC is a national regulatory body and doesn’t appear to be restricted by state laws.
This lack of restriction puts the company in a no-win situation about employee behavior. Texas, or any state with a similar law, effectively indemnifies an employee turning in a pregnant woman but can’t indemnify the company when that creates a hostile workplace for the female employees. However, most employment is Employment at Will (Montana is the only exception) which means the firm could terminate an employee who used this provision to attack a pregnant peer but would have to do so without listing the cause. The termination would likely also be challenged on a national stage. And the power of such a policy would be in its communication, which would establish a cause and a foundation for that challenge rendering the termination path risky and potentially non-viable.
Even asking the company about abortion out of state could put the company at risk under this Texas law and open them to related litigation. It is yet unclear whether multiple third parties can file for relief given the Texas law waves standing. This potential extreme liability for a large brand may make dealing with this with some internal policy to relocate the pregnant employee who needs the abortion problematic if they are in the state when the request is made.
Salesforce’s approach to relocating the employee if they feel uncomfortable would seem the best path, but it is untested. You could argue that the only employees that would be “uncomfortable” were those seeking an abortion. While I think that argument would be weak, the trial would be in Texas, which created the law, and judges typically are not fans of workarounds if it is clear the law’s intent was violated. And given this policy didn’t exist before the Texas law was passed, the foundation for the policy could be brought into question. So, while the Salesforce policy would appear to be the best approach, it may not survive the challenge, suggesting the need for reserves to cover potential litigation might be, in hindsight, considered to be prudent.
Proactive Move by Salesforce
Salesforce is a powerful brand, and its expertise is in instrumenting employees and customers. As noted, this makes them a bellwether in cases like this, providing both a potential remedy path and an early warning of a coming problem. Other companies to watch would include any significant brand following the Salesforce example.
Even if an employee doesn’t file a Hostile Workplace action, they may feel intimidated by the law and fear the employees around them. That fear could hurt their productivity and company loyalty, forcing them to seek employment out of the state where they are not at risk from this law. It could also escalate to violence in the workplace if the spouse of an employee sued by a coworker under this law results in miscarriage, perceived abuse, or death. I turned down running an HR department myself years ago because my predecessor faced off against the angry spouse of an employee who had reported abuse. Texas is arguably one of, if not the most, liberal states regarding gun ownership, making the risk of violent response potentially high there.
Salesforce’s move to proactively relocate the employees would seem to be the only sure way to eliminate a class action against them and the potential of confrontations in the workplace that could escalate to armed violence. Removing even the opportunity for this to escalate, particularly in Texas, would seem to be highly prudent.
Wrapping up: Should you implement a similar policy?
The Texas abortion law potentially pits employees against employees, creates a hostile environment for female employees, and may possibly escalate to violence. While the U.S. Justice Department is challenging the law, simply having one employee being emboldened to threaten to turn a fellow employee in for even considering abortion is unacceptably high. Since this threat alone could both found a successful Hostile Workplace action under the EEOC and escalate rapidly to violence (Texas is having issues), the practice of removing an employee at risk would appear prudent.
Indeed, plans to move to Texas should be put on hold until the viability of this law is understood, and we have a better handle on the long-term employee implications in terms of employee acquisition and retention. And should this law result in class actions and workplace violence, which seems likely, it would be prudent to at least develop conditional plans with set triggers to relocate out of Texas to protect both employees, and the company brand should the anticipated problems become pronounced enough to justify such a move.
Kudos to Salesforce for getting ahead of this and taking care of their female employees at risk; I don’t expect them to stand alone with this policy.
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