Until now, courts have frequently concluded that a woman who is fired for undergoing fertility treatments—that is, fired before becoming pregnant—probably isn’t covered by the Pregnancy Discrimination Act (PDA).
Courts reasoned that because infertility can be tracked to both males and females, infertility discrimination isn’t gender linked.
But now a court has concluded that women who undergo in vitro fertilization efforts are protected under the PDA. That’s because only women can undergo the process.
Recent case: Elira Govori worked at a bar that required its servers to interact with customers in what Govori described as a flirty manner. When she decided to become pregnant, she discovered she had a fertility problem. She discussed her medical condition with supervisors.
Govori learned that her best bet for becoming pregnant would be in vitro fertilization, followed by having the embryo implanted in her uterus. She told her supervisors she was about to begin the implantation process. The next day she was terminated, allegedly for having a “poor demeanor.”
She sued, alleging her termination was illegal under the PDA.
The bar owners argued that infertility isn’t specific to women and therefore is neither sex nor. The court disagreed. It said only women undergo implantation to become pregnant and therefore the procedure is both sex- and pregnancy-related. It said the case could go forward. (Govori v. Goat Fifty, et al., No. 10-Civ-8982, SD NY, 2011)
Final note: Govori will now have to show that her termination was linked to the implantation procedure. She will likely try to demonstrate that her employers didn’t want a pregnant woman flirting with customers. The timing of her termination will be one factor. A second factor likely will be the decision to use demeanor as the discharge reason.