Fertility is a very touchy subject. Most people assume that it is easy for a couple that wants to get pregnant to get pregnant. Unless you experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it's difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization (IVF) are both time consuming and time sensitive.
What happens when a woman undergoing IVF treatments needs time away from work for those treatments? If her company fires her because of her infertility (a gender-neutral condition), does she present a sex discrimination claim? In Hall v. Nalco Co. (7th Cir. 7/16/2008), the Court permitted a woman fired during her IVF treatments to proceed with her Title VII sex discrimination claim.
Hall worked as a sales secretary at Nalco. In March 2003, she requested a leave of absence to undergo IVF, which her supervisor, Mary Baldwin approved. The first IVF cycle failed, and on July 21 she filed for another leave of absence to begin August 18. Around the same time, Baldwin told Hall that their office was merging with another office, and that only the secretary from the other office would be retained. Baldwin told Hall her termination “was in [her] best interest due to [her] health condition.” Prior to informing Hall of her termination, Baldwin discussed the matter with a corporate employee relations manager, whose notes reflect that Hall had “missed a lot of work due to health,” and more specifically, in a section relating to Hall’s job performance, cite “absenteeism—infertility treatments.” Dwyer, the secretary who was retained, was a female employee who, coincidentally, had been incapable of becoming pregnant herself.
Hall alleged she was fired on account of being “a member of a protected class, female with a pregnancy related condition, infertility.” Without reaching the merits of Hall’s claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition.
The 7th Circuit disagreed and reinstated Hall's claim. The Pregnancy Discrimination Act made clear that discrimination based on a woman’s pregnancy, or childbirth and medical conditions related to pregnancy or childbirth, is, on its face, discrimination because of her sex. The Court believed that the district court's reliance on infertility as a gender-neutral condition was misplaced given the facts of Hall's case.
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. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure.... Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.Moreover, the Court was troubled by the timing of and circumstances surrounding Hall's termination:
Hall was fired shortly after a failed IVF procedure and just before she was scheduled to undergo a second attempt; her boss, Marv Baldwin, told her that the termination was “in [her] best interest due to [her] health condition.” In her notes documenting Hall’s termination, Jacqueline Bonin, Nalco’s employee-relations manager, wrote that Hall "missed a lot of work due to health,” and also noted in a section regarding Hall’s job performance, “absenteeism—infertility treatments.” This evidence is susceptible of both discriminatory and nondiscriminatory explanations; a jury will have to decide.The lessons to take away from this case are several:
- The court got it absolutely correct that infertility treatments fall under the PDA as actionable sex discrimination. To me, it does not pass the smell test for the employer to rely on the retention of Dwyer to argue that it does not discriminate on the basis of infertility. Dwyer had not missed work for IVF treatments, and there was a clear factual question as to whether Hall would have been terminated but for her time away from to try to start a family.
- Sometimes, too much documentation is a bad thing. If you right it down, it will be used against you in a lawsuit. Kudos to the corporate employee relations manager for taking diligent notes, but I'm not sure it was in her company's best interest to fully document that it was terminating Hall because she had “missed a lot of work due to health” because of “absenteeism—infertility treatments.”
- Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.