Until now, it was an open question whether that law covered fertility treatments performed in order to become pregnant. Lower courts had argued that infertility is a gender-neutral condition because both males and females may contribute to the problem.
Now the 7th Circuit Court of Appeals has ruled that employers can’t punish female employees for undergoing in vitro fertilization because it is a medical procedure performed only on women on account of their childbearing capacity.
Recent case: Cheryl Hall worked for Nalco as a sales secretary. Hall asked for leave to undergo in vitro fertilization, or IVF. IVF is an assisted reproductive technology that involves administering fertility drugs to a woman, surgically extracting her eggs, fertilizing them and surgically implanting the eggs back into the woman’s womb. Each treatment takes weeks to complete and may not “take,” leading to many treatments.
The company approved Hall for leave from March 24 to April 21. The process was not successful, so she applied for a second leave on July 21 for a second treatment to begin on Aug. 18.
Meanwhile, the company decided to eliminate one of two secretaries. According to internal notes, supervisors discussed how Hall had missed “a lot of work due to health,” and that her job performance was poor due to “ —infertility treatments.”
Nalco terminated Hall. Her supervisor told her the termination was “in her best interest due to her health condition.” Hall sued, alleging she was fired because she had a pregnancy-related condition—infertility.
A trial court dismissed her case, reasoning that men also can be infertile. The 7th Circuit Court of Appeals overturned that decision. It reasoned that employees terminated for taking time off for IVF—just like those taking time off to give birth or receive other pregnancy-related care—will always be women.
It said that if Hall’s termination was because she took time for treatment, that was discrimination based on childbearing capacity—exactly the sort of protection that the PDA was passed to provide. A jury now will decide whether the smoking-gun memos detailing HR’s concerns about Hall’s absences are proof of discrimination. (Hall v. Nalco Company, No. 06-3684, 7th Cir., 2008)
Final note: Think twice before basing any employment decision on any aspects of a woman’s capacity to bear children. The PDA covers far more than just actual pregnancy. Train managers and supervisors to avoid any speculation on pregnancy, fertility or their possible impact on productivity, scheduling or the like. Simply put, pregnancy, conception, fertility treatments, prenatal care and anything else related to a female’s unique childbearing capacity cannot and should not be considered when making hiring, firing or other employment decisions.
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