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People's Law Guide

 

Pregnancy Discrimination: Workplace Rights When Undergoing Fertility Treatment

11/24/12

PREGNANCY DISCRIMINATION: WORKPLACE RIGHTS WHEN
UNDERGOING FERTILITY TREATMENT

      Working women are frequently electing to delay becoming first-time mothers until reaching their late 20's, 30's and even into their early to mid 40's. Postponing childbirth until achieving goals relating to education, finances or career success increases the difficulties associated with becoming pregnant. As a result, more women then ever are seeking  intervention from health care professionals to increase their likelihood of becoming pregnant.

      Adverse career consequences can arise whenever employees take time off from work, and that certainly holds true for women undergoing fertility treatments. Cheryl Hall, employed for six years in Chicago for Nalco Company,  a manufacturer of water treatment products, found this out. In March, 2003, Hall advised her supervisor she needed a three week-long leave of absence to undergo in vitro fertilization (IVF), which involves administration of fertility drugs, surgical extraction of eggs, fertilization in a laboratory, and surgically returning the embryo’s into the womb. As frequently occurs, the initial IVF process did not result in pregnancy. In late July, 2003, Hall asked her supervisor for a second leave of absence for more IVF treatment, this time to begin in  mid-August.  Days after submitting her request, Hall’s boss told her she was being laid-off and that losing her job was in her “best interest” due to her “health condition.” 

      Hall filed a pregnancy discrimination lawsuit and learned that her supervisor told Nalco Company’s Employee Relations manager she “missed a lot of work due to health” citing “absenteeism - infertility treatments.” It was then decided another secretary would be kept on the job, and Hall was to be cut from the payroll. Believing this was strong evidence of discrimination, Hall and her attorney were surprised when the presiding federal court judge dismissed the case due to his belief that no gender-bias had occurred since men also can be infertile. Hall appealed. In July, 2008, three federal appellate judges ruled unanimously in Hall’s favor, ruling that the Pregnancy Discrimination Act provided legal recourse because of “the gender-specific quality of childbearing capacity.” 

      The ruling is significant, because the Pregnancy Discrimination Act outlaws discrimination by employers having as few as 15 employees. Though the Family & Medical Leave Act also provides legal recourse for workers taking time off from work to care for their serious health conditions, that law only applies when employers have 50 or more workers within 75 miles of the jobsite. Millions of women in the U.S. work for employers having too few employees to be governed by discrimination provisions of the Family & Medical Leave Act. Also, only employees having at  least 12 months of seniority and having worked 1,250 or more hours for their employer within the prior year qualify to use the Family & Medical Leave Act. Federal prohibitions on gender bias extend protections to all persons employed by outfits having 15 or more workers, regardless of how long they have been on-the-job.

      While rulings by the  Appellate Court overseeing the portion of the U.S. where Illinois is located are not binding on Federal judges overseeing courts in Florida, they can be cited for their sensible reasoning which should be applied locally. Judges impressed by the soundness of rulings from courts in other jurisdictions frequently “adopt” decisions handed down elsewhere. For Floridians, this ruling becomes even more important since there is no state law specifically prohibiting employers from discriminating against pregnant workers. Though the Florida Civil Rights Act outlaws gender bias at organizations employing 15 or more workers within the State, it remains uncertain whether this state law’s protections extend to pregnancies.

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