posted on Monday, August 25, 2008 11:33 AM
by
Lou Michels
Infertility Treatments Are Not Gender Neutral
A recent 7th Circuit pregnancy discrimination case is instructive on several bases. The plaintiff began missing time from her job to undergo in vitro fertilization, a treatment that takes weeks to complete. As is often the case, the initial treatment was unsuccessful and the plaintiff applied for a second leave of absence about four months after her first 27-day absence.
The employer was consolidating its staffing around this time and decided to eliminate several positions. Of course, one of the candidates for consolidation was the position occupied by the plaintiff. The employer decided to retain another woman who was performing the same job, but who had not missed as much work.
The plaintiff's immediate supervisor told her about the decision and, in classic "let's raise an issue of material fact" style, told the plaintiff that the termination was in her best interest “due to her health condition." The supervisor also discussed the termination with the human resources manager, and the HR manager recorded in her notes that the plaintiff "missed a lot of work due to health" and noted poor job performance because of "absenteeism - infertility treatments." The company terminated her employment approximately two weeks before the plaintiff was scheduled to go out on her second in vitro absence.
The district court granted summary judgment to the employer because it believed that fertility alone was a gender-neutral condition and, therefore, the employer could not be found guilty of violating the Pregnancy Discrimination Act when it considered fertility remedies as a basis for its decision. The 7th Circuit had no trouble reversing the district court's determination, noting that an adverse employment action based on absence related to pregnancy or pregnancy treatment violates the statute. The employer's legitimate basis for the termination, i.e., the office consolidation and elimination of a secretarial position, was fatally undercut by the fact that both the supervisor and the human resources director memorialized their focus on the plaintiff's pregnancy as a factor in their decisions. Thus, the case gets to a jury.
Again, referencing an employee's protected status, such as health or pregnancy, conterminously with an adverse employment action, is usually fatal to summary disposition of a case. Notwithstanding the fact that this employer probably thought that it was doing the employee a favor by removing a source of stress from her life, referencing these kinds of considerations is a surefire way to find yourself explaining it to a jury.