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Federal pregnancy bias protections extend to infertility care: 7th Circuit

JUDY GREENWALD

CHICAGO—The Pregnancy Discrimination Act provides employment discrimination protection to women who are undergoing in vitro fertilization procedures, according to the 7th U.S. Circuit Court of Appeals.

The three-judge panel's unanimous July 16 decision in Cheryl Hall vs. Nalco Co. is likely to be influential, as it is the first appellate ruling on this issue, observers say.

The decision is the second recent ruling extending PDA protections beyond traditional claims.

In May, the 3rd U.S. Circuit Court of Appeals held in Jane Doe vs. C.A.R.S. Protection Plus Inc. that the PDA grants employment discrimination protection to women who have had an abortion (BI, June 9).

In 2003, Ms. Hall, then a sales secretary in Nalco's Chicago office, took one leave of absence to undergo an IVF treatment, and when that was unsuccessful, she requested another leave to undergo a second treatment, according to the 7th Circuit decision.

Before she took the second leave, though, she was told by her supervisor that because of a consolidation, the firm was keeping only one of the two sales secretaries, and she was terminated. Her supervisor told her the termination "was in (her) best interest due to (her) health condition," according to the opinion.

Prior to the termination, the supervisor had also discussed the matter with the firm's employee relations manager.

According to the manager's notes, Ms. Hall had "missed a lot of work due to health" and in a section relating to her job performance, the manager cited "absenteeism-infertility treatments."

Ms. Hall sued, claiming her termination violated the Pregnancy Discrimination Act. A district court granted Nalco summary judgment on the ground that infertile women are not protected under the PDA because infertility is a "gender-neutral condition."

But the appeals court disagreed. The 1978 PDA, which amended Title VII of the Civil Rights Act of 1964, recognized "certain inherently gender-specific characteristics that may not form the basis for disparate treatment of employees," the opinion said.

"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," the opinion said.

"This is necessarily so; IVF is one of several assisted reproductive technologies that involves 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," said the court, which remanded the case for further proceedings.

Jonathan T. Hyman, an employer attorney with Kohrman Jackson & Krantz P.L.L. in Cleveland, said, "I think this case really is a cautionary tale for companies that when you're dealing with issues that surround family responsibilities, you're much less likely in 2008 to get a sympathetic ear from the court."

This decision "does open up a new potential source of complaints by employees, and employers are going to want to be sensitive to that," said Paul Mollica, a plaintiff attorney with Meites, Mulder, Mollica & Glink in Chicago.

Observers agree that this decision is likely to be influential.

"I think this decision is very significant for defining more clearly what conditions are related to pregnancy" and it will be influential, said Marcia L. McCormick, an assistant professor at Samford University's Cumberland School of Law in Birmingham, Ala.

With more women putting off motherhood until their 30s or 40s, "I think you're going to see more and more cases like this, and I think to the extent that this is the first case that has directly tackled this issue, other courts are going to look at this case to guide them," said Mr. Hyman.

Employer attorney Sarah A. Kelly of Cozen O'Connor P.C. in Philadelphia said the decision concerns "new issues that weren't around" when the statute was approved, "and we're reading a lot into the statute now that I think is not necessarily obvious."

She said along with the 3rd Circuit's Jane Doe decision, this decision "creates extra protection for women who go through these procedures, but I think it's still going to be a fairly rare occurrence that this particular issue comes up."

The recurring issue under the PDA much more often will "be the woman who is six or seven months pregnant and doesn't get hired" or does not get a promotion, said Ms. Kelly.

Nalco's attorney, Mark A. Lies II, of Seyfarth Shaw L.L.P. in Chicago, said the company is still reviewing the decision.