Pregnancy Discrimination and Infertility Treatments

In 1978, Congress amended Title VII to include pregnancy in the definition of sex discrimination. It may seem straight-forward to say that discrimination because of pregnancy is sex discrimination but the idea, to this day, trips up many employers and employees. One reason for this (assuming honest intentions) is that pregancy means more than pregnancy. Female employees can be discriminated against because someone has the potential to be pregnant, International Union v. Johnson Controls, Inc., 499 U.S. 187 (1991), because she wants to be pregnant in the future, Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 470 (6th Cir. 2005), or because she has, or refuses to have, an abortion. Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358, 364 (3d Cir. 2008).

Two days ago, the federal court of appeals in Chicago issued a decision which held that firing an employee because the employee was undergoing in vitro fertization was also discrimination because of sex. Infertility, the court acknowledged, can affect males and females (this was the basis for the lower court's decision holding there was no sex discrimination), but "even where (in)fertility is at issue, the employer conduct complained of must actually be gender neutral . . . . 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."

Of course, the employer didn't outright admit it fired the employee because she sought in vitro fertilization. It asserted the employee was let go when offices were combined. But in the notes documenting the termination, the employer wrote, she had “missed a lot of work due to health,” and also noted, in describing the employee's performance, “absenteeism—infertility treatments.” That was enough to at least raise the spector that her attempts to become pregant played some role in the decision.

For something as common as it is, pregnancy cases can pose unusual issues for employers. On the one hand an employer is supposed to "ignore employee pregnancies," Reeves v. Swift Transp. Co., 446 F.3d 637, 641 (6th Cir. Tenn. 2006), but it cannot, if it wants to avoid the result in Asmo v. Keane, Inc., 471 F.3d 588, 594 (6th Cir. Ohio 2006), fail to make "congratulatory words" when an employee announces she is pregnant.