In 1978, Congress passed The Pregnancy Discrimination Act of 1978, which acts as an amendment to
Title VII of the Civil Rights Act of 1964. The Act makes clear that “[d]iscrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII.” The Act further states that “[w]omen affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.”
Recently, the Seventh Circuit in Hall v. Nalco interpreted the Act to apply to women who undergo infertility treatments. In that case, the plaintiff, Cheryl Hall, was allegedly discharged after requesting further time off to undergo vitro fertilization. In 2003, Ms. Hall underwent an embryo transfer. To ensure adequate time to recuperate, her physician recommended that she take time off after the procedure. Unfortunately, the embryo transfer failed, necessitating a second procedure. Despite receiving approval for a second leave of absence, Ms. Hall’s supervisors allegedly laid her off due to absenteeism associated with her infertility treatments.
If Ms. Hall had taken time off to give birth or prepare for her child’s birth, there would have been little question that her employer’s decision to terminate her employment violated The Pregnancy Discrimination Act of 1978. This case, however, hinged on Ms. Hall’s infertility treatment. Not surprisingly, the Seventh Circuit allowed Ms. Hall’s case to proceed forward to a jury trial, reasoning that infertility is not a gender-neutral condition:
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. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a 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.
According to statistics published by the MayoClinic, estimates reveal that 10% to 15% of couples suffer from infertility, with female infertility accounting for 40% to 50%. The Seventh Circuit’s decision will no doubt benefit thousands of employees nationwide.