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Can a Woman be Fired for Absenteeism Related to Fertility Treatments? A Federal Court of Appeals Says No.


Tuesday, Aug. 19, 2008

Like many other women, Cheryl Hall was afflicted with infertility. After taking one leave from work, and requesting a second, to undergo in vitro fertilization (IVF), she was fired. Does Title VII, the main federal anti-discrimination law, prohibit an employer from firing an employee under these circumstances? In a recent ruling, Hall v. Nalco, the U.S. Court of Appeals for the Seventh Circuit said yes.

Conflicts between Reproduction (Including Infertility Treatment) and Work

There is no inherent conflict between reproduction and work. But certainly pregnant women sometimes face challenges at work, whether posed by environmental conditions, like chemicals, radiation, or infectious disease; or by physical movements that can be difficult to perform, like standing for long periods of time, stooping over, climbing stairs or ladders, or lifting heavy objects; or, finally, by job conditions, like irregular hours, shift work, or psychological stress. As I have written in previous columns such as this one, the law protects against pregnancy "discrimination," but provides little in the way of forcing employers to accommodate the women's condition, and ameliorate the conflict between being pregnant and fulfilling certain job conditions, in these situations.

For some women, the potential conflicts between reproduction and work start even earlier - while they attempt to become pregnant. The American Society for Reproductive Medicine estimates that as many as 6 million people in the United States are infertile. (Medically speaking, infertility is typically diagnosed if 12 months of unprotected intercourse does not produce a pregnancy, or after multiple miscarriages.) Infertility can be caused by a "female factor," a "male factor," a "couple factor," or for an unknown reason.

Not all of these people seek treatment for the infertility or the assistance of reproductive technology, and not all of those who do so have jobs to juggle at the same time. But a significant number of those who struggle with infertility have to balance work with the often invasive and time-consuming procedures used to try and achieve pregnancy.

For instance, IVF, an increasingly common procedure, requires a difficult series of procedures and injections that will require most, if not all women to take time off from work. Many will also suffer side effects from IVF drugs or the procedures that may interfere with a woman's full working capacity.

What Protection Do Women Have When Reproduction Conflicts with Work?

The main piece of legislation affecting such conflicts is the Pregnancy Discrimination Act of 1978, which amended Title VII. Prior to the enactment of the PDA, the Supreme Court, in General Electric v. Gilbert, had interpreted Title VII to exclude pregnancy discrimination from its protection. The PDA specifically overruled the ruling in that case and made clear that Title VII's ban on sex discrimination included discrimination on the basis of "pregnancy, childbirth, or related medical conditions." The PDA also guarantees that employers must treat pregnant workers at least as well as they treat comparably disabled workers with respect to leave, insurance benefits, and so on.

What does any of this have to do with fertility treatments? The question in Hall, a matter of first impression in the Seventh Circuit, was this: Does infertility qualify as a "related medical condition" because it relates to women's intention or potential to become pregnant?

Is Infertility Discrimination Also Pregnancy Discrimination Under the PDA? The Allegations and the Judicial Decisions in Hall's Case

Cheryl Hall, the plaintiff in the recent case that came before the Seventh Circuit, did require leave from work while undergoing in vitro fertilization. Although her case has not yet reached a factfinder, the parties agree that Hall took a month-long leave of absence in March 2003. She did not become pregnant through that round of IVF and requested a second leave of absence in August 2003. Before she was scheduled to begin the second leave, however, her supervisor informed her that the company was reorganizing and retaining only one of the two people with her title, and she was terminated.

Hall filed a charge with the EEOC (a necessary prerequisite to proceeding with a lawsuit under Title VII) alleging that she was fired because she took leave to undergo fertility treatments, and that this was in violation of the Pregnancy Discrimination Act of 1978. She alleges that her supervisor told another supervisor that Hall had "missed a lot of work due to health" and wrote "absenteeism-infertility treatments" on her performance review. She also noted that the employee who kept the remaining position of the original two was a woman who is incapable of having children.

The district court granted summary judgment to Hall's employer on the ground that "infertile women" are not a protected class under Title VII. Because both men and women can experience infertility, the court reasoned, it is a gender-neutral condition. However, as the Seventh Circuit explained on appeal, this reasoning does not comport with caselaw interpreting the PDA.

A Key Supreme Court Precedent That Assisted Hall

Case law has established that "pregnancy" discrimination can precede conception and be asserted by a plaintiff who is not pregnant and indeed, is not even planning to become pregnant. At least one court has held, for example, that the failure to provide insurance coverage for oral contraceptives violates the PDA - as I discussed in a previous column. That holding is significant for Hall's case, for surely efforts to impede pregnancy are no more a "related medical condition" to pregnancy than efforts to achieve pregnancy.

More importantly, the U.S. Supreme Court has made clear that the PDA is not limited to women who are already pregnant. In International Union v. Johnson Controls, the Court held that it violates the PDA to deny women certain jobs (there, jobs with lead exposure) simply because they are fertile and because the working conditions might pose risk to a fetus later conceived.

The Court thus concluded that the company couldn't legally send only sterile women into an environment with lead exposure, and keep fertile women out. (Several women in that case had undergone voluntary sterilization in order to keep their jobs). The bottom line was that women's potential to get pregnant could not serve as the basis for discrimination, any more than pregnancy itself could.

As courts have made clear, the PDA grants no special rights to pregnant women. Rather, it exists to ensure that women's capacity to bear children and their choice whether or not to do so do not subject them to unfair discrimination in the workplace.

Is It Discrimination for Employers to Punish Time Off For Infertility Treatment When Both Men and Women Can Experience Infertility?

There's a second issue, however, which is trickier. If both men and women can experience infertility, is it "pregnancy discrimination" to fire a woman because she takes time off to treat it?

Here, again, Johnson Controls is instructive. The opinion said that the employer's rule violated the PDA because it was not based on "fertility alone," but rather was based on "gender and childbearing capacity". The argument to be made in Hall's case is that only women will undergo assisted reproductive procedures to become pregnant. The Seventh Circuit thus concluded that Hall, if her allegations are true, "was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity."

This ruling is in tension with a ruling of the U.S. Court of Appeals for the Second Circuit, which upheld an employer's insurance policy excluding coverage for fertility treatment. In that case, Saks v. Franklin Covey Co., which I have written about previously, the court held that the PDA only reaches pregnancy discrimination as a form of sex discrimination. Therefore, the Second Circuit reasoned since both sexes suffer from infertility (and in roughly equal proportion), discrimination on the basis of infertility does not constitute unlawful pregnancy discrimination.

The appellate court in Hall has the better of the argument, however, and the few lower courts to consider the precise issue have ruled similarly. As one of those courts explained, "It makes sense to conclude that the PDA was intended to cover a woman's intention or potential to become pregnant, because all that conclusion means is that discrimination against persons who intend to or can potentially become pregnant is discrimination against women, which is the kind of truism the PDA wrote into law."

Will Cheryl Hall Win on Remand?

While Hall won this round of her case - obtaining the important appellate ruling that fertility-treatment discrimination can be a form of pregnancy discrimination under the PDA - she still has obstacles to surmount. The grant of summary judgment to her employer was reversed, but now she must proceed to trial.

Let's assume for a moment that Hall's employer did just as she alleged - that is, it fired her for absenteeism related to infertility treatments. Is that an unlawful form of discrimination? It depends. If her employer fired her because it bore animosity or hostility against women because of their pregnancy status (including those actual pregnancy, potential pregnancy, or inability to achieve pregnancy), then the termination would certainly constitute unlawful discrimination.

But if her employer did not seek to penalize her because of her potential pregnancy, but simply disliked her absenteeism, what then? Under the PDA, women have no absolute right to accommodations for disability related to pregnancy or childbirth. Her employer could fire her for absenteeism - even if the cause was her fertility treatments - as long as it would have fired a man under comparable circumstances. Hall's ultimate burden will be thus to prove that they singled her out for adverse treatment because of her fertility treatment, or to allege and prove that a strict absenteeism policy has a disparate impact on pregnant or potentially pregnant women.

Regardless of whether Cheryl Hall is able to prove liability at trial, this appellate ruling vindicates an important right of gender equality. It is also an important reminder that the burden of juggling reproduction and work falls almost exclusively on women. The law should do more to accommodate that reality, but the Seventh Circuit's ruling is at least one step in the right direction.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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