SEX DISCRIMINATION

PDA protects women undergoing in vitro fertilization

In our December 2006 issue (see "Does the Pregnancy Discrimination Act cover infertility? Inconceivable!"), we reported on a Chicago federal district court's decision that held that women undergoing infertility treatment weren't protected from discrimination under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA). The employee appealed, and the Seventh U.S. Circuit Court of Appeals (which covers Illinois) has now weighed in. Read on to find out what the court had to say.

Termination unexpected

Cheryl Hall worked as a sales secretary for Nalco Company and reported to Marv Baldwin, a district sales manager in the Chicago-area office where she was employed.

In March 2003, Hall requested a leave of absence to undergo infertility treatment, namely in vitro fertilization (IVF). IVF is an assisted reproductive technology that involves the administration of fertility drugs to the woman, surgical extraction of her eggs, fertilization of the eggs in a laboratory, and surgical implantation of the resulting embryos in the woman's womb. Each IVF treatment takes weeks to complete, and multiple treatments are sometimes needed to achieve a successful pregnancy.

Baldwin approved the request, and Hall took leave from March 24 to April 21, 2003. When she returned, she informed Baldwin that she planned to undergo IVF again because the first procedure had been unsuccessful. In July 2003, she again applied for a leave of absence, to begin August 18.

In January 2003, Nalco began to reorganize in an effort to eliminate operating costs. That ultimately led to the consolidation of Baldwin's sales office with another sales office and the elimination of a sales secretary position. At the end of July 2003, Baldwin informed Hall that the sales office was consolidating and moving to Naperville and that Shana Dwyer, the secretary from the other office, would be retained. Baldwin told Hall her termination "was in [her] best interest due to [her] health condition." Before informing Hall of her termination, Baldwin told Jacqueline Bonin, Nalco's employee-relations manager, that she had "missed a lot of work due to health."

Hall filed a discrimination charge with the Equal Employment Opportunity Commission claiming that Nalco had discriminated against her based on sex. After receiving her right-to-sue letter, she filed suit in federal district court.

A novel conception

Without reaching the merits of Hall's claim, the district court dismissed her case before trial on the grounds that she couldn't prove sex discrimination because infertility is a gender-neutral condition and isn't entitled to protection under Title VII, as amended by the PDA. On appeal, the court noted that her claim presented an issue never before decided in the Seventh Circuit ― or perhaps any other court.

Title VII's ban on discrimination "on the basis of sex" was amended by the PDA to include discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." The simple test in any Title VII sex discrimination case is to determine whether the employer would treat the employee differently if she were of a different gender.

In deciding that Hall wasn't entitled to protection under the PDA, the district court relied primarily on two cases from other circuits that held that the PDA doesn't require employer insurance policies to cover infertility treatment so long as both male and female treatments are excluded. Both of those cases distinguished the U.S. Supreme Court's decision in International Union v. Johnson Controls, Inc., which held that an employer policy barring all fertile women (but not men) from jobs involving lead exposure ― because of its potentially damaging effect on fertility and the fetus ― was invalid because it "classifie[d workers] on the basis of gender and child-bearing capacity, rather than fertility alone."

The Johnson Controls policy didn't differentiate based on the gender-neutral characteristic of fertility alone, which by implication wouldn't be prohibited by the PDA. Instead, it was based on the gender-specific characteristic of childbearing capacity or "potential for pregnancy" and was therefore invalid under the PDA.

A pregnant pause

In Nalco's case, employees 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 since IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. Therefore, the district court was wrong in concluding that Hall was terminated for the gender- neutral condition of infertility. Instead, she may have been terminated for the gender-specific quality of childbearing capacity. Adverse employment actions based on childbearing capacity are actionable under Title VII, as amended by the PDA.

Nalco argued that the PDA didn't apply to Hall's IVF procedures because the Act applies only postconception. However, the court rejected that argument, stating that the U.S. Supreme Court has recognized the applicability of the PDA to the "potential for pregnancy," not just actual pregnancy. The Seventh Circuit sent the case back to the lower court, where a jury will now decide whether the company is guilty of discrimination. Hall v. Nalco Co., No. 06-3684 (7th Cir., July 16, 2008).

Conceive this!

At trial, Hall will need to prove that Nalco's stated legitimate business reason for terminating her ― consolidation of its offices and elimination of one secretarial position ― was pretextual. She was fired shortly after a failed IVF procedure and after she announced that she needed to undergo a second attempt. Her boss told her that her termination was "in [her] best interest due to [her] health condition," and he told Nalco's employee-relations manager that Hall "missed a lot of work due to health." It will be up to a jury to sort it all out.