Termination for Infertility Treatments, Quirky Question # 53

Quirky Question # 53:

I read with interest your Quirky Question # 46, regarding the issue of whether an employer can fire an employee for having an abortion.  I have a slightly different inquiry.  Could we fire an employee because of her infertility treatments?  I ask because we need to reduce our workforce slightly and one of the employees we are considering has been recently involved in in vitro fertility treatments.  She’s missed quite a bit of work and it seems likely that she will miss more.  Given that fact, we’d rather retain other employees in comparable positions.

Since both men and women alike may suffer from infertility, our decision is not based on sex.  Any thoughts?

Dorsey’s Analysis:

My thoughts are that you had better have an alternative explanation for terminating your employee if you hope to avoid both litigation and liability under Title VII.  Although I recognize the validity of your observation that infertility may affect men and women alike, certain types of infertility treatments are unique to women and, therefore, are encompassed by the Title VII’s Pregnancy Discrimination Act (PDA).

Your reference to Quirky Question # 46 is on target.  As I discussed in that analysis, the key to the question of whether an employer could terminate an employee for having an abortion was the PDA provision that explained the term “because of sex” included discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”  Just as the decision to terminate a pregnancy implicated the ‘related medical conditions’ language, so too does the decision to use modern medical techniques to enhance the likelihood of pregnancy.

In the very recent (last month) decision of Hall v. Nalco Company, No. 06-3684 (7th Cir. 2008), the federal appellate court addressed, in a case of first impression, the question presented in this Blog posting.  In the Hall case, the defendant company terminated an employee who was going through the in-vitro fertilization (IVF) process to address her infertility.  As the 7th Circuit explained (quoting from medical journals), the IVF process “is an assisted reproductive technology that involves administration of fertility drugs to the woman, surgical extraction of her eggs, fertilization in a laboratory, and surgical implantation of the resulting embryos into the woman’s womb.”  Each IVF treatment takes weeks to complete and multiple treatments are sometimes needed to achieve a successful pregnancy.

As the court stressed, “the PDA made clear that, for all Title VII purposes, discrimination based on a woman’s pregnancy is, on its face, discrimination because of her sex.”  The court noted that “the same is true for disparate treatment based on childbirth and medical conditions related to pregnancy or childbirth.”  This lead to the SeventhCircuit’s observation, “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 court found that Hall had not been terminated because of her gender-neutral condition of infertility, but for the “gender-specific quality of childbearing capacity.”

The 7th Circuit then concluded, “Because adverse employment action based on child-bearing capacity will always result in ‘treatment of a person in a manner which but for that person’s sex would be different,’     . . . Hall’s allegations present a cognizable claim of sex discrimination under Title VII.”

Having recognized the validity of Hall’s claims, the court then turned to the specific facts to evaluate whether the District Court had improvidently granted summary judgment.  Because Nalco’s management employees had made careless comments and writings regarding Hall’s health, fertility treatments and related absences from work, the appellate court felt that the case was not appropriate for summary judgment disposition.  The case, therefore, was sent back to the lower court for resolution by a jury.

In short, you would be ill-advised to base your termination decision on your concerns about the amount of time your employee has missed or may miss for infertility treatments.  If you find it necessary to consolidate your workforce, make your retention and discharge decisions on neutral, performance-based factors that do not implicate your employees’ protected class status.  To do otherwise invites litigation and increases your company’s potential legal exposure.

Dorsey & Whitney

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

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