Female Employee Fired for Having IVF Procedure has Claim for Pregnancy Discrimination

It seems as if the courts are giving birth to a number of important pregnancy discrimination act cases these days. In our last post, we wrote about a case from the Third Circuit Court of Appeals, in which the court held that a female employee who was fired shortly after having an abortion can assert a claim for sex discrimination under the Pregnancy Discrimination Act. In today’s post, we discuss a case from the Seventh Circuit Court of Appeals, Hall v. Nalco Co., in which the court held that an infertile female employee who was discharged as a result of taking leaves of absence to undergo infertility treatments can state a claim under the Pregnancy Discrimination Act (PDA).

In Hall, the plaintiff, a female employee who suffered from infertility, requested time off from work to undergo in vitro fertilization (IVF). The company gave her a month-long leave of absence to have the IVF. Several months after she returned from her leave, she requested an additional leave to undergo another IVF because the first procedure had been unsuccessful. Just after she requested her leave, the company, which was in the process of a reorganization, advised the plaintiff that that she was going to be laid off in connection with the reorganization. Although the company did not tell the plaintiff the specific reason for her discharge, the evidence later revealed that the decision to select her for termination was due to her excessive absenteeism related to her “infertility treatments.”

In response to her termination, the plaintiff filed a PDA case against the company, alleging that her infertility was a pregnancy-related condition and that her discharge was therefore discriminatory. The district court, however, rejected plaintiff’s claim and granted the company’s motion for summary judgment, holding that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition, and thus there was no discrimination against plaintiff.

On the plaintiff’s appeal, the court noted that the PDA was enacted to protect against discrimination based on inherently gender-specific characteristics. Therefore, it concluded that since only women will ever take time off to undergo IVF procedures, the plaintiff was terminated “not for the gender neutral condition of infertility, but rather for the gender specific quality of childbearing capacity.” Accordingly, the court reversed the award of summary judgment to the defendant.