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Ability to conceive irrelevant to pregnancy discrimination

by on
in Human Resources,Maternity Leave Laws

The Pregnancy Discrimination Act prohibits discrimination against pregnant women and those who may become pregnant. It also makes it illegal to retaliate against these women.

In an interesting twist, the actual ability to become pregnant isn’t particularly relevant as long as the employee who claims discrimination can show her employer thought she might become pregnant.

As the following case shows, the woman’s actual fertility isn’t as important as her ability to prove her employer thought she might have children and it acted on that belief.

Recent case: Rochelle Batchelor sued Merck & Co., claiming it discriminated against her based on pregnancy. Although Batchelor was never actually pregnant, she said her supervisor overheard her telling co-workers at a party that she intended to become pregnant. The supervisor ultimately fired her because of her potential pregnancy.

When she sued, Merck tried to persuade the court that the company should have a look at Batchelor’s OB-GYN medical records, allegedly to prove she was infertile. But the court said the records were irrelevant. What counted was whether Batchelor’s supervisor believed she might get pregnant, not whether she could actually have a child.

It’s illegal to discriminate against women because of their potential childbearing capacity, not just while they are pregnant.

Plus, the court worried that Merck wanted the records just so it could see if she might have a sexually transmitted disease or suffer from embarrassing conditions. It said that would be harassment rather than discovery. (Batchelor v. Merck & Co., No. 3:05-CV-791, ND IN, 2007)

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