Pregnancy Discrimination Laws Might Not Protect Employees Who Seek Infertility Treatment from Discrimination

In vitro fertilizationPregnancy discrimination, which includes various adverse employment actions based on an employee’s pregnancy, recent childbirth, or related medical conditions, is prohibited by federal law and many state and local laws. Disparate treatment of employees who are pregnant or have recently given birth, however, is far from the only pregnancy-related issue affecting people in the workplace. The extent to which the Americans with Disabilities Act (ADA), which requires employers to make “reasonable accommodations” for employees with disabilities, applies to pregnant employees remains unclear from a legal standpoint. Infertility has also been an issue in some court cases, along with discrimination against employees who seek treatments involving assisted reproductive technologies (ART). Courts have reached varying conclusions about this issue.

The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination in the definition of unlawful sex discrimination. 42 U.S.C. § 2000e(k). This statute protects employees from adverse actions like firing, refusal to hire, or reduced hours or job duties unrelated to an employee’s ability to work. Amendments to the ADA in 2008 expanded that statute’s definition of “disability,” and several courts have held that this expanded definition includes some conditions related to pregnancy. Employees are also asking courts to find that employers must make reasonable accommodations for activities like breastfeeding or pumping breast milk during work hours. The Family Medical Leave Act (FMLA) can pertain to pregnancy discrimination, since it requires employers to give eligible employees unpaid time off for family medical situations, and it prohibits discrimination or retaliation based on the use of such leave.

The legal landscape regarding accommodations for pregnancy-related conditions remains unclear, and it is even less clear with regard to employees who undergo ART treatments. These treatments can range from medications intended to improve fertility to artificial insemination and in vitro fertilization (IVF). The issue of disability discrimination with regard to ART has received a fair amount of attention, such as when physicians deny treatment to someone because of an actual or perceived disability. Only a handful of court decisions address ART in the context of employment discrimination.

One of the best-known cases involving ART found that an employer violated Title VII when it fired a female employee for missing work while she was undergoing IVF. Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008). The district court had dismissed the case on the grounds that infertility can affect both women and men, and therefore it cannot be considered a form of sex discrimination under Title VII. The appellate court reversed this ruling, finding that the employer fired the plaintiff “for the gender-specific quality of childbearing capacity,” rather than for “the gender-neutral condition of infertility.” Id. at 649.

Other courts have reached different conclusions. The Second Circuit, whose jurisdiction includes New York, ruled against a plaintiff’s Title VII claim based on a denial of employer-provided health insurance coverage for infertility treatments. Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003). The court held that the PDA and Title VII did not apply because the employer’s denial of coverage “disadvantages infertile male and female employees equally.” Id. at 346.

Phillips & Associates’ pregnancy discrimination attorneys advocate for the rights of people in New York City who have experienced unlawful workplace practices like pregnancy discrimination. To schedule a free and confidential consultation to see how we can assist you with your legal matter, contact us today online or at (212) 248-7431.

More Blog Posts:

Pregnancy Discrimination Can Occur in Policies Seemingly Intended to Protect Pregnant Workers, New York Employment Attorney Blog, August 31, 2016

Jury Awards $550,000 in Damages in Pregnancy Discrimination Case, New York Employment Attorney Blog, August 17, 2016

New York Legislature Considers Paid Family Leave Law, New York Employment Attorney Blog, April 13, 2016

Photo credit: Dovidena (Own work) [CC BY-SA 4.0], via Wikimedia Commons.

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