Courts have long held that Title VII's definition of "sex" (as expanded by the Pregnancy Discrimination Act) unequivocally includes infertility treatments.
Here's what one federal court wrote about IVF discrimination in 2011:
Here's what one federal court wrote about IVF discrimination in 2011:
"[O]nly women undergo surgical implantation procedures; therefore, only women and not men stand in potential danger of being fired for missing work for these procedures. An employer who fires his female employee for missing work for IVF treatment discriminates not on the basis of reproductive capacity or infertility alone, but on the basis of medical conditions related to pregnancy. Thus, women who are fired for undergoing IVF are protected from such discriminatory, sex-based action by the terms of the PDA."
And here's what another federal court wrote on the same issue all the way back in 2008:
"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."
Since those opinions, and much more recently, Congress passed the Pregnant Workers Fairness Act. It requires employers to reasonably accommodate a worker's known limitations related to pregnancy, childbirth, or related medical conditions, and includes accommodations for IVF and other infertility treatments.
Thus, an employee who requests leave for IVF treatment for the worker to get pregnant, or who needs a schedule change to accommodate IVF treatments, or is fatigued because of IVF treatments, is entitled to a reasonable accommodation under the PWFA.
To deny such an accommodation request is unlawful sex discrimination. You will get sued, and you will lose.
Thus, an employee who requests leave for IVF treatment for the worker to get pregnant, or who needs a schedule change to accommodate IVF treatments, or is fatigued because of IVF treatments, is entitled to a reasonable accommodation under the PWFA.
To deny such an accommodation request is unlawful sex discrimination. You will get sued, and you will lose.