Seventh Circuit Holds that Termination for Infertility Treatment Is Sex Discrimination

The Seventh Circuit an opinion released last week in Hall v. Nalco Co., in what seems to be a case of first impression at the circuit level, held that terminating a women for the time she took to undergo fertility treatments would violate Title VII as amended by the Pregnancy Discrimination Act. The PDA states in part, "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions." Pub. L. No. 95-555, 92 Stat. 2076 (1978).

The Supreme Court interpreted that provision in International Union U.A.W. v. Johnson Controls and held that employers could not consider women's fertility in making employment decisions. Female fertility, or the capacity to become pregnant, was a condition related to pregnancy, and thus covered by the PDA's definition of sex. Two circuits have considered a related issue, whether infertility is a condition covered by Title VII in the context of insurance benefits, and both distinguished Johnson Controls. In Saks v. Franklin Covey, the Second Circuit held that both men and women could be infertile, and procedures are performed on women to treat both male and female infertility, so the insurance plan's lack of coverage was thus not gender discrimination. The court left open the specific question presented by the Hall case, about penalties for using leave to have infertility treatments. In Krauel v. Iowa Methodist Medical Center, the Eighth Circuit came to a similar conclusion, holding that "[p]regnancy and childbirth, which occur after conception, are strikingly different from infertility, which prevents conception."

The Seventh Circuit found that Hall's situation was governed by Johnson Controls and distinguished the benefits cases:

Nalco’s conduct, viewed in the light most favorable to Hall, suffers from the same defect as the policy in Johnson Controls. 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. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. . . . Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Because adverse employment action based on childbearing 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.

The court rejected the argument that Hall had made that infertile women were a class protected by Title VII.

One thing that puzzled me about the court's reasoning is the assertion that those terminated for taking time off for undergoing IVF will only be women. Men may sometimes need to take time off of work to participate in IVF or other fertility processes. For example, there are some surgical or at least invasive procedures that men sometimes undergo in combination with the in-vitro fertilization or intra-uterine insemination procedures that women undergo. One situation is where live sperm have to be retreived directly from the testes. At the same time, those procedures are not time sensitive in the way that the procedures that women undergo are, and so perhaps it's not inevitable that men will have to miss work for them. Or perhaps the court was being very specific about what it meant to "undergo IVF," defining that implicitly only to the parts of the process that are performed on women.

Even though the Seventh Circuit held that it was infertility plus gender differentiation that made this fall under Title VII's prohibition, the decision still seems inconsistent at least with Krauel's holding that infertility is not a medical condition related to pregnancy. And that could have far-reaching effects, as will the other important piece of analysis, that because the fertility procedures (at least those at issue) all take place within a woman's body, penalizing a person for having the procedures will be penalizing the person because of sex. Those lines of analysis impact how courts have viewed the issue of prescription contraception coverage. In fact, it may create a circuit split with the Eighth Circuit, which last year, in In Re Union Pacific Railroad Employment Practices Litigation extended Krauel and held that denial of coverage for prescription contraception, even though it only exists for women and only operates on women's bodies, is not discrimination under Title VII. The court held that contraception is not related to pregnancy because it is a medical treatment "only indicated prior to pregnancy" and prevents pregnancy from even occurring.

I foresee more litigation related to infertility and contraception in the future.

MM