• Seventh Circuit Holds That the Pregnancy Discrimination Act Covers In Vitro Fertilization Treatments
  • August 11, 2008
  • Law Firm: Kilpatrick Stockton LLP - Atlanta Office
  • In 1978, the Pregnancy Discrimination Act (“PDA”) amended Title VII to define the terms “discrimination because of sex” and “discrimination on the basis of sex” to include “discrimination on the basis of pregnancy, childbirth, or related medical conditions.” Since the PDA’s enactment, courts have grappled with the issue of whether employment actions based on fertility or infertility violate the law. Although several courts have held that employers may lawfully exclude all treatments for infertility from their employee health insurance plans, the U.S. Court of Appeals for the Seventh Circuit recently distinguished those decisions and held in Hall v. Nalco Co. that an adverse employment action based on a gender-specific infertility treatment would violate Title VII’s prohibition of sex discrimination in employment.

    The Seventh Circuit’s Decision in Hall v. Nalco Co.

    In March 2003, Cheryl Hall, a sales secretary, requested and received a leave of absence from her job to undergo in vitro fertilization (“IVF”) treatments. The first IVF cycle failed, and several months later, Hall requested another leave of absence for a second IVF procedure. Shortly thereafter, Hall was informed that the sales office was merging with another office and that her position was being eliminated. Hall’s boss told her that being terminated “was in [her] best interest due to [her] health condition.” Prior to terminating Hall, her boss had a discussion with a corporate employee-relations manager whose notes contained references to Hall’s “absenteeism - infertility treatments” and to Hall “miss[ing] a lot of work due to health.”

    Hall sued her employer under Title VII, claiming she was terminated for being “a member of a protected class, female with a pregnancy-related condition, infertility.” The lower court granted judgment for the employer on the grounds that infertility was a gender-neutral condition that was not entitled to protection under Title VII.

    On appeal, the Seventh Circuit reversed the lower court’s decision, holding that the issue was not infertility alone, but rather the employee’s taking time off for IVF treatments. Specifically, the court ruled that although infertility is a gender-neutral condition affecting men and women equally, an employer’s action with respect to infertility must be gender-neutral to pass muster under Title VII. In this case, the employer’s allegedly basing an employment decision on an employee’s absences for IVF treatments did not satisfy that standard. As the court explained, IVF treatments are one of several assisted reproductive technologies involving a surgical impregnation procedure and affecting women only. Thus, the Seventh Circuit ruled Hall allegedly was terminated “not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.”

    Whether the company’s decision to terminate was based on the legitimate elimination of Hall’s position in a restructuring or on Hall’s need for IVF treatments was left for a jury, but the Seventh Circuit suggested that the timing of her termination (shortly after her failed IVF procedure and just before she was scheduled to undergo a second attempt) and the corporate employee-relations manager’s notes expressly referring to her IVF treatments were evidence that the discharge had been based on a gender-specific reason.

    Practical Implications

    The Seventh Circuit’s decision in Hall v. Nalco Co. did not disagree with earlier rulings that employment actions based on infertility in general are not unlawful because they affect men and women equally. Thus, employers may, for example, lawfully exclude all treatments for infertility from their health benefit plans. The wrong recognized by the Nalco court was the adverse treatment of a particular infertility-related procedure that affects women only. Just as an employer may not discriminate against a woman because of her pregnancy or need for maternity leave, it may not single out IVF, a gender-specific procedure focusing on a woman’s child-bearing capacity, as the basis for an adverse employment action. As was the case in Nalco, an ad hoc employment decision based on an employee's absences to undergo IVF treatments could result in a viable claim of sex discrimination.