Monday, May 2, 2011

In vitro proving to be fertile ground for sex discrimination claims

One case has the potential to be an anomaly. Two cases is a bona fide trend. Nearly three years ago, in Hall v. Nalco Co., the 7th Circuit afforded Title VII protection to a woman’s infertility treatments.

Last month, in Govori v. Goat Fifty, LLC (S.D.N.Y. 3/31/11), a different court permitted an employee—fired the day after she advised her supervisors and co-workers that she had begun fertility treatments—to proceed with her sex discrimination claim. If employers weren’t paying attention to this issue before, they should be now.

In evaluating Govori’s pregnancy discrimination claim, the court adopted the reasoning of Hall, which concluded that Title VII protects women undergoing in vitro fertilization treatments because only women are anatomically capable of undergoing these procedures:
[O]nly women undergo surgical implantation procedures; therefore, only women and not men stand in potential danger of being fired for missing work for these procedures. An employer who fires his female employee for missing work for IVF treatment discriminates not on the basis of reproductive capacity or infertility alone, but on the basis of medical conditions related to pregnancy. Thus, women who are fired for undergoing IVF are protected from such discriminatory, sex-based action by the terms of the PDA. 
The question presented here is whether an employer, having assumed the financial responsibility of salaried employment, can then fire its female employee solely on the basis that she decided to undergo IVF treatments…. Accordingly, Govori has stated a cognizable claim for sex-based discrimination under Title VII, as amended by the PDA.
Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures.