Criminalized Fringe Benefit?

 

“The worst thing you can do is promise your employees a benefit and then have no plan to make sure you can actually provide it… Don’t wait until a law passes to figure out what you’re going to do. Start figuring it out now.” 

Sonja Spoo, director of reproductive rights campaigns at Ultraviolet, a national gender justice advocacy organization.

It’s a sea of complexity. On the one hand, corporate boards and officers have only one statutory fiduciary duty: to shareholders. One the other, running a corporation requires having qualified, incentivized, and reliable employees, clients and customers who value the company in addition to that shareholder/investor/Wall Street side. For more details about this legal structure, see my recent Walking the Line – Corporations, Social Responsibility and Politics blog.

The real world is not so simple. With one clear and single stakeholder (shareholders) to whom officers and directors owe the only fiduciary duty, mired in a world where governmental controls (regulatory and legislative) are often a function of corporate contributions and towing the political line, companies face a litany of unpleasant choices, where supporting one necessary constituency necessary draws the ire of another. And as we shall see, most CEOs of big corporations are Republicans!

It's clear that evangelical and other fundamentalist religious groups are feeling their oats. Although a distinct minority and not reflective of a majority of American views, religious minorities in our political system have a legitimate advantage, a legal but disproportionate political voice. Bolstered by the egregious 2010 Supreme Court ruling in Citizens United vs FEC, big money can mount financially unrestrained political campaigns that would be illegal many Western democracies. We also know that the Constitution created a rural bias that results in 30% of the US population election 50% of the Senate. Finally, the new radical right-wing Supreme Court has become a de facto legislature without any checks and balances.

It is within that context that corporate leaders must make some harsh choices. And unfortunately, many major companies that believe they can sit on the sidelines, pretend to be politically neutral, often get their corporate head handed to them. Disney CEO, Bob Chapek, failed to apply pressure before the Florida legislature passed Governor Ron DeSantis’ “don’t say gay” bill. His Disney World employees, including a rainbow of LGBQT workers, picked up their protest signs (above) and shut the park down. When Chapek finally announced Disney’s corporate support against that Florida law, DeSantis and his puppet legislature stripped Disney of its protected status in Orange County. Will that sustain judicial scrutiny? Who knows?

It sure isn’t stopping other states from following suit: “Republican-led states have unleashed a policy push to punish Wall Street for taking stances on gun control, climate change, diversity and other social issues, in a warning for companies that have waded into fractious social debates… Abortion rights are poised to be the next frontier… This year there are at least 44 bills or new laws in 17 conservative-led states penalizing such company policies, compared with roughly a dozen such measures in 2021, according to a Reuters analysis of state legislative agendas, public documents and statements.” Pete Schroeder for Reuters, July 6th. First Amendment? Seriously? Nobody seems to care.

But if gender protections were a hot issue for Disney, the radical right-wing Supreme Court’s Dobbs vs Jackson reversal of Roe vs Wade, combined with the red state legislative flurry to prosecute anyone providing any support for abortions (across state lines if necessary), is scalding. That which was perfectly legal prior to June 24th suddenly has been criminalized… with penalties sometimes even mirroring those applied to murder. Can red state citizens legally get “morning after” pills in the mail? Can states prosecute those in blue states offering out-of-state women open access to abortions? Can those who help or support abortion seekers to travel to blue states for the procedure be criminally prosecuted in the traveler’s home state?

The US military has already decided that it will support female soldiers seeking an abortion even if they are stationed in an antiabortion red state (soldiers do not choose their bases). But that’s more about federal preemption. But if a corporation with a red state presence offers abortion support to female employees seeking that procedure in a blue state? Writing for the July 4th Los Angeles Times, Kiera Feldman lays out the problem: “After the Supreme Court overturned Roe vs. Wade, a wide swath of corporate America came out with a message for its workforce: We will pay to help you get an abortion in a place where the procedure is still available.

“From banking to technology to entertainment, executives vowed to support access to abortion, some pledging as much as $10,000 to cover employees’ travel for care. But it wasn’t immediately clear how any of this would work in practice.

“Would workers have to tell their employers that they need an abortion in order to secure travel reimbursement funds? How would companies ensure workers’ privacy? What would they do to protect employees — and themselves — from legal attacks, such as those made possible by a Texas law that allows private citizens to sue anyone who ‘aids and abets’ abortion? Would part-time workers and contract workers be covered? And would companies fight to restore the legal status of abortion in the places where it has been lost?... So far, companies making the promises don’t seem to have answers.” But without that support, how many female employees would resign and move elsewhere?

In normal times, you would expect the Supreme Court to void states’ attempting to apply their statutes outside their territorial limits, particularly where the relevant outside state has directly contradictory laws. But the new radical right Supreme Court, apparently finding evangelical teachings, states rights and NRA dictates above the US Constitution, might rule in favor of red state criminal overreach. Corporations which offer such support have reason to be concerned.

“The Times asked more than a dozen companies that said they would cover out-of-state abortion care if they had a plan in place for defending against legal challenges, particularly in Texas. Airbnb, Reddit, Snap, Netflix, Microsoft, EBay, Wells Fargo, Dick’s Sporting Goods, Starbucks, Amazon, Discord and Boeing didn’t answer the question. Only Yelp and Rakuten responded directly… ‘This is the right thing to do for our employees, and we are not concerned about legal risk,’ a Yelp spokesperson said in a statement. ‘With more than 200 employees in Texas, we felt it was important that they had consistent access to the health services they needed, no matter where they live.’” LA Times. Companies trying to play both sides of the street are finding that to be a very difficult game these days.

“‘One thing corporations can and should do is try to fight back on this by saying we are not going to have jobs in your state; we will not have our conferences in your state,’ said Cary Franklin, law professor at UCLA and faculty director of the Center on Reproductive Health, Law and Policy. “It’s not just states that have power over corporations. Corporations have leverage too.”

“Advocates also say corporate political giving should be brought in line with public declarations of supporting employees’ access to reproductive care… Since 2020, American corporations have donated $195.4 million to antiabortion lawmakers, according to Ultraviolet. In the South, where all three of the major Supreme Court abortion cases of the last decade originated, 79% of corporate political giving goes to antiabortion lawmakers, the group found.

“‘You can’t on one hand fund these extremists and then beg forgiveness for your sins by paying for your folks to go out of state for care,’ said Ultraviolet’s Spoo. ‘Corporate America’s contributions to antiabortion politics have led us to this moment. They are absolutely on the hook for getting us out of it by pulling their funding from the politicians who are actively working to roll back our rights.’” LA Times. It’s simply too late to pretend to be neutral.

I’ll end this blog with a little statistic that might tell you where the hearts and minds of corporate America really are. “For all the hand-wringing among U.S. conservatives that companies are increasingly imposing their liberal social agendas on workers and customers, a new study finds that top executives have become more Republican, and C-suites more ideologically like-minded, over the last decade.

“The share of Republican executives was 68% in 2020, up from 63% in 2008, according to a study from the National Bureau of Economic Research. The authors also found that in the same period executive teams have become about 8% more politically homogeneous at Standard & Poor’s 1500 companies as measured by the teams’ breakdowns of registered Republicans and Democrats… In short: Where a boardroom may once have been filled by a mix of Democrats and Republicans, it’s now more likely to be predominately red or blue.” LA Times/Bloomberg, July 5th. Welcome to America, the dis-United States of America.

I’m Peter Dekom, and waiting on the sidelines, donating to both sides, and hoping the issue will just go away, fail mightily when the emotional responses from pro- and anti-abortion factions have risen to such sustained frenzied passion.