In the first case of its kind before a federal circuit court, the Seventh Circuit Court of Appeals held recently that an employer violated Title VII for terminating a female employee who underwent in vitro fertilization treatments. To read the opinion in Hall v. Nalco Company, click here.
The employer terminated the employee citing “absenteeism—infertility treatments.” It then replaced her with a female employee who was incapable of becoming pregnant. The employee sued, alleging her termination violated the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy and childbirth as bases for discrimination. The employer argued that the termination was for a gender-neutral reason: infertility. However, the Seventh Circuit held that there was evidence the termination was for her gender-specific quality of childbearing, in violation of Title VII.
Despite Hall, employment actions based on infertility are not unlawful as long as they affect men and women equally. For example, employers may lawfully exclude all treatments for infertility from their health benefit plans. Employers should beware, however, of adverse treatment of a particular infertility-related procedure that affects women only. Just as an employer may not discriminate against women because of pregnancy or maternity leave, it may not discriminate against women who undergo in vitro fertilization. For more information on avoiding pregnancy discrimination, read this fact sheet from the EEOC.