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Cheryl, a secretary at your company, took a four-week leave of absence to undergo in vitro fertilization (IVF) after being diagnosed with infertility. After she returned to work, she informed her boss that she intended to undergo a second IVF procedure because the first one had been unsuccessful. She filed for another leave of absence but was terminated shortly before that leave was scheduled to start. Although her manager told her she was being terminated as a result of the consolidation of two offices, he also told her that her termination was in her best interest due to her “health condition.” Cheryl sued for sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Does she have a valid claim?
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Answer: |
Yes. In a case with similar facts, the Seventh Circuit, in an apparent matter of first impression among the circuits, ruled that a secretary who alleged that she was discharged for taking time off to undergo IVF stated a claim for sex discrimination under Title VII, as amended by the Pregnancy Discrimination Act. While infertility affects both men and women, IVF is a particular form of surgical impregnation performed only on women on account of their childbearing capacity.
“Employees who are discharged 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,” wrote the federal appeals court. “Thus, contrary to the district court's conclusion, [the secretary] was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.” Moreover, the suspicious timing of her discharge, which occurred shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt, created triable issues of fact.
Cite: Hall v. Nalco Co (7thCir 2008) 2008 US App LEXIS 15106.
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