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Pregnancy Discrimination Act Covers Abortions And Infertility Treatments

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When educating management on avoiding Pregnancy Discrimination Act (PDA) claims, it is important to cover how employees who are not pregnant may be protected by the Act. For example, two recent circuit courts have held that the PDA protects those who have an abortion and those who seek fertility treatments.


In June, the 3rd Circuit (Delaware, New Jersey, Pennsylvania, Virgin Islands) declared that the plain language of the PDA, "together with the legislative history and EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion." (Doe v. C.A.R.S. Protection Plus, Inc., Nos. 06-3625, 06-4508)


The court has not determined whether the employee has a valid claim, just that she can go to trial and try to prove that her supervisor fired her because she had an abortion. Her evidence includes the fact that he treated her differently than other employees who were out sick by requiring her to call in every day of her absence. He also allegedly commented that the employee "did not want to take responsibility," which raised a reasonable inference that the abortion factored into his termination decision.


Managers must understand that, no matter how strongly they oppose abortions, they cannot let it affect how they treat employees who feel differently.


On the opposite end of the spectrum are employees who are trying to get pregnant via infertility treatments. An employee took a month off to undergo in vitro fertilization (IVF) treatments. Three months later, she again applied for a leave of absence to undergo IVF. At about the same time, she was reorganized out of her job. She accused the company of discriminating against her in violation of the PDA.


A district court dismissed the case in 2006, ruling that the employee failed to prove she is a member of a protected class. Reason: Infertility affects both men and women equally and is not a condition that is unique to women.


However, in July, the 7th Circuit (Illinois, Indiana, Wisconsin) reversed that decision. Said the court: "Employees terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women…Thus, contrary to the district court's conclusion, [the employee] was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity." (Hall v. Nalco Co., No. 06-3684)


Take care when handling a leave request for infertility treatment. The employee could be protected by the PDA, the Family and Medical Leave Act (if the definition of serious health condition is met), and/or the Americans with Disabilities Act (infertility is a substantial limitation on the ability to reproduce).

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