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Seventh Circuit Says Termination after Absences for In Vitro Treatments Is Sex Discrimination

    Client Alerts
  • July 25, 2008

The Pregnancy Discrimination Act prohibits employers from discriminating against employees due to pregnancy, childbirth or related conditions. A new decision from the Seventh Circuit Court of Appeals finds that infertility treatments are covered under the PDA, even though both genders can experience fertility problems. In Hall v. Nalco Co., the plaintiff alleged that she was fired after she missed work for in vitro fertilization attempts. In response to her PDA claim, the employer sought dismissal, stating that it excluded all fertility treatments from its discretionary leave policy. Because infertility problems affect men and women, the employer claimed that alleged discrimination on this basis did not constitute gender discrimination under the PDA or Title VII.

The Seventh Circuit disagreed, reversing the lower court’s dismissal of the claim. The court declined to legally group all infertility treatments. The specific treatment sought by the plaintiff in this case was difficult, invasive, and only applicable to women. Because only women bear children, these treatments must be viewed separately from infertility procedures applicable to men. Under the PDA, gender-specific characteristics relating to reproduction cannot form the basis for disparate treatment by the employer.

In other words, the issue to the Seventh Circuit in this case was not a question of fertility, but rather one of childbearing capacity. If the employer treated absences for in vitro treatments differently from those for other short-term disabilities, it would violate the PDA, even if it shows similar policies toward all fertility procedures. Although not discussed in the case, the employer’s alleged actions could also form the basis for a claim of failure to provide reasonable accommodation under the Americans with Disabilities Act, because infertility may be considered a significant impairment of a major life activity.