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LABOR & EMPLOYMENT LAW — 8/7/08

In vitro fertilization not gender neutral, can proceed with sex bias claim

A secretary who alleged that she was discharged for taking time off to undergo in vitro fertilization (IVF) stated a cognizable sex discrimination claim under Title VII, as amended by the Pregnancy Discrimination Act (PDA), concluded the Seventh Circuit Court of Appeals, in an apparent matter of first impression among the circuits. (Hall v Nalco Co, 7thCir, 91 EPD ¶43,247)

After the secretary’s first IVF cycle failed, she requested a second leave of absence to perform another treatment. At the same time, her supervisor informed her that their office was merging with another office and that only the secretary from the other office would be retained. Her supervisor told her that her discharge “was in [her] best interest due to [her] health condition.” Prior to informing the secretary of her discharge, the supervisor discussed the matter with a corporate employee relations manager, whose notes reflected that the secretary had “missed a lot of work due to health,” and more specifically, in a section relating to her job performance, cited “absenteeism—infertility treatments.” After her discharge, the secretary filed suit alleging sex bias. She asserted that she was fired on account of being “a member of a protected class,” i.e., a female with a pregnancy related condition—infertility. Without reaching the merits of her claim, the district court granted summary judgment to her employer on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition.

Taking an adverse action against employees undergoing IVF would fall under the PDA as actionable sex discrimination, held the Seventh Circuit, reversing the district court. “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 circuit court. 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. “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.” Because adverse employment actions taken on account of childbearing capacity affect only women—resulting in disparate treatment based on sex—the secretary presented a viable claim. 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, held the Seventh Circuit.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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