News: Court ruling may make it easier to take time off for infertility treatment

October 1, 2008

Women who need time off from work for infertility treatment may invoke the Pregnancy Discrimination Act to protect them from legal action for their absenteeism.

An appeals court in Chicago ruled that women who need time off from work for infertility treatment may invoke the Pregnancy Discrimination Act (PDA) to protect them from legal action for their absenteeism, The Wall Street Journal (8/15/08) reported. The ruling, which was the first decision of its kind at the federal appeals-court level, opened the door for Cheryl Hall to sue her former employer for pregnancy-related bias. Hall was a secretary who was laid off after taking time off-then asking for more-for in vitro fertilization.

Hall filed her original suit against her employer under Title VII of the Civil Rights Act of 1964, as amended by the PDA, alleging sex discrimination. Under the PDA-amended Title VII, discrimination because of sex includes discrimination related to pregnancy, childbirth, or related medical conditions. The district court ruled for Hall's employer on the ground that Hall could not prove sex discrimination because infertility is a gender-neutral condition. In reversing the district court's ruling, the appeals court noted that "although infertility affects both men and women, Hall claims she was terminated for undergoing a medical procedure-a particular form of surgical impregnation-performed only on women on account of their childbearing capacity." Hall therefore had a legitimate sex-discrimination claim under the PDA, the court said. Neither the district court nor the appeals court ruled on the merits of Hall's claim (her employer says Hall was let go because of a reorganization), only on her right to bring suit under the PDA.

The appeals court ruling expands a trend toward recognizing infertility as a medical problem. Thirteen states have laws mandating that insurance plans pay for in vitro fertilization. In addition, employees increasingly are seeking time off for infertility treatment under the federal Family and Medical Leave Act.