Pregnancy Discrimination Act Covers Abortions, In Vitro Fertilization
Is an employee who misses work to have an abortion protected from firing by the Pregnancy Discrimination Act (PDA)? How about someone who misses work for in vitro fertilization? According to two recent federal court decisions, the answer is ”yes.”
The Abortion Case
In the first case, Doe v. C.A.R.S. Protection Plus, Inc., No. 06-3625 (3rc Cir. 2008), the anonymous Jane Doe plaintiff was fired three days after having an abortion. She claimed that her firing constituted gender discrimination under Title VII, as amended by the PDA.
The employer moved for summary judgment, arguing that the PDA didn’t apply. The lower court agreed, finding no nexus between pregnancy and the termination. Doe appealed.
The court of appeals noted that the PDA specifically states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work” (emphasis added).
The court concluded that abortion is a “related medical condition” to pregnancy and thus is covered. It reversed the lower court’s decision and remanded it for further proceedings.
The In Vitro Case
Similary, the Seventh Circuit ruled on Wednesday that in vitro fertilization (IVF) is covered by the PDA. Hall v. Nalco Co., No. 06-3684 (7th Cir. 2008).
Cheryl Hall requested time off from her secretary job to undergo IVF. Her employer approved the leave. When the process was unsuccessful, Hall asked for additional time off for a second procedure.
Shortly thereafter, Hall was informed that her position was being eliminated. Hall’s boss allegedly told her that her termination was “in [her] best interest due to [her] health condition.” Notes taken by an HR representative contained references to her absences for IVF and that she “missed a lot of work due to health.”
The lower court ruled that infertility is an unprotected gender-neutral condition. The court of appeals reversed, finding that while infertility is indeed gender-neutral, IVF is not. The case was remanded for further proceedings.
The Lessons
Lesson #1: policies or practices that adversely affect one gender may be found discriminatory. More specifically, taking adverse action against a woman related to pregnancy, abortion or IVF may violate the PDA.
Lesson #2: be very careful what you document. Notes like those taken by HR in the Hall case can doom your lawsuit. As we state in our Top Ten Tips, good documentation is better than no documentation but no documentation is better than bad documentation.
