Conceiving Equality: Infertility-related Illness Under the Pregnancy Discrimination Act

• Publication year: 2010

Georgia State University Law Review

Volume 26 . ,

Article 5

Issue 4 Summer 2010

3-21-2012

Conceiving Equality: Infertility-Related Illness Under the Pregnancy Discrimination Act

Nichole DeVries

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Recommended Citation

DeVries, Nichole (2009) "Conceiving Equality: Infertility-Related Illness Under the Pregnancy Discrimination Act," Georgia State

University Law Review: Vol. 26: Iss. 4, Article 5.

Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss4/5

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CONCEIVING EQUALITY: INFERTILITY-RELATED ILLNESS UNDER THE PREGNANCY DISCRIMINATION ACT

Nichole DeVries¹

Introduction

While infertility may have always posed an obstacle to conception,² scientific advancements have made it possible for the afflicted to conceive with the help of assisted reproductive technologies (ARTs).³ For women, ARTs, however, are often expensive and invasive procedures.⁴ In 2006, approximately 6.1 million Americans of reproductive age were affected by infertility-related illness,⁵ forty percent related to female factors.⁶ The rise in ART success rates and access to treatments has motivated increasing legal challenges surrounding the rights and benefits of employees affected by infertility issues.⁷ Claims range in scope from challenging

1. A special thanks to Professor Mary Radford and Dean Kelly Timmons, both of Georgia State University College of Law, for their guidance and insight during the development of this Note.

2. In 1995, fifteen percent of women had used some type of infertility service (medical advice, tests, drugs, surgery, or other treatments) compared to twelve percent in 1988. joyce C. Abma, Anjani Chandra, William D. Mosher, Linda S. Peterson & Linda J. Piccinino, U.S. Dep't of Health & Human Servs., Fertility, Family Planning, and Women's Health: New Data for the 1995 National Survey of Family Growth 7 (1997), available at http://www.cdc.gov/nchs/data/series/sr_23/sr23_019.pdf.

3. The success rate for assisted reproductive technologies has improved over time. In 2002, twenty-eight percent of in-vitro fertilization and embryo transfer procedures resulted in a live birth compared to fourteen percent in 1988. Society for Assisted Reproductive Technologies, Success Rates, http://www.sart.org/Guide_SuccessRates.html (last visited Sept. 29,2008).

4. Ctrs. for Disease Control, Assisted Reproductive Technology: Home, http://www.cdc.gov/ART/ (last visited Sept. 29, 2008); see also A.D.A.M., Inc., Infertility in Women, Assisted Reproductive Technologies, N.Y. Times, http://health.nytimes.com/health/guides/disease/infertility-in-women/assisted-reproductive-technologies.html (last visited Oct. 29, 2009).

5. Jessica L. Hawkins, Separating Fact from Fiction: Mandated Insurance Coverage of Infertility Treatments, 23 WASH. U. J.L. & POL'y 203, 205 (2007).

6. Forty percent were related to male factors and twenty percent of infertility cases were related to both male and female factors. Cintra D. Bentley, Note, A Pregnant Pause: Are Women Who Undergo Fertility Treatment to Achieve Pregnancy Within the Scope of Title VII's Pregnancy Discrimination Act?, 73 Chi.-Kent L. Rev. 391, 394 (1998).

7. Melissa B. Brisman, Legal Issues of Fertility, fertility today, http://www.fertilitytoday.org/fertility_law_ethics.html (last visited Nov. 9,2008).

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insurance policies that do not cover infertility treatments to combating discriminatory policies against employees undergoing treatment⁹ and fetal protection policies.¹⁰ While protecting women from discriminatory policies remains an important objective requiring continuing efforts, the absence of consensus regarding the level of protection the law provides creates a burden for the millions of people seeking medical help for infertility-related illness and disability.¹¹

On July 17, 2008, the United States Court of Appeals for the Seventh Circuit held in Hall v. Nalco that women discharged while undergoing infertility treatment may state a claim of sex discrimination under Title VII of the Civil Rights Act of 1964¹² "not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity." This ruling reversed the lower court decision finding the Pregnancy Discrimination Act (PDA) under Title VII does not protect infertility alone.¹⁴ The Hall decision is only one example of the inconsistency among federal courts' recognizing the importance of protecting gender equality and antidiscrimination policies while grappling with newer challenges of infertility treatments and illness in the workplace.¹⁵

8. See generally Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003); Krauel v. Iowa Methodist Med. Or., 915 F. Supp. 102 (S.D. Iowa 1995), qfi"d, 95 F.3d 674 (8th Cir. 1996).

9. See generally Hall v. Nalco Co., 534 F.3d 644,649 (7th Cir. 2008).

10. See generally Int'l Union v. Johnson Controls, Inc., 499 U.S. 187 (1991) (holding fetal protection policies treating the childbearing capacity of men and women differently unconstitutional because they are unjustifiable sexually discriminatory policies); Barbara Jo Naretto, Employment Discrimination Made Easy: Fetal Protection Policies, 24 VAL. U. L. REV. 441 (1990). Although relevant reasoning within these cases is used to evaluate infertility in the context of this article, extensive discussion of fetal protection policies is outside the scope of this Note.

11. See Bentley, supra note 6, at 392.

12. Civil Rights Act of 1964,42 U.S.C. § 2000e-2(a) (1982).

13. //a«,534F.3dat649.

14. Hall v. Nalco Co., No. 04 C 7294, 2006 WL 2699337 (N.D. 111. Sept. 12, 2006), rev'd, 534 F.3d 644 (7th Cir. 2008); Pregnancy: Federal Court Rules Infertility Is No Basis for Protection Under Federal Pregnancy Law, 27 Emp. Discrimination Rep. (BNA) No. 435 (Oct 11,2006).

15. Compare Krauel v. Iowa Methodist Med. Ctr., 915 F. Supp. 102 (S.D. Iowa 1995), afd, 95 F.3d 674 (8th Cir. 1996) (finding that both men and women have the biological potential to be infertile and therefore infertility does not fell within the protections of the PDA under Title VII), with Erickson v. Bd. of Governors of State Colls. & Univs. for Ne. 111. Univ., 911 F. Supp. 316 (N.D. 111. 1995) (finding that infertility is a pregnancy-related condition under the Pregnancy Discrimination Act).

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The PDA is one avenue employees use to challenge employment-related infertility policies.¹⁶ In 1978, Congress amended Title VII to include the PDA,¹⁷ requiring employers to treat pregnancy and pregnancy-related conditions the same as other disabilities. The PDA represented considerable progress toward employment equality, but also left ample room for interpretation.¹⁹ One concern courts have attempted to resolve includes challenges to the meaning and breadth of the language "pregnancy-related condition."²⁰ While case law and legal scholarship surrounding this landmark legislation developed, so did the availability of advancements in reproductive technology,

16. A plaintiff often brings a claim under the PDA as well as other statutes and regulations such as Title VII and the Americans with Disabilities Act. See, e.g., Pacourek v. Inland Steel Co., 858 F. Supp. 1393 (N.D. 111. 1994) (analyzing a claim brought under Title VII, Pregnancy Discrimination Act, Age Discrimination in Employment Act, and Americans with Disabilities Act).

17. Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076 (amending 42 U.S.C. § 2000e(k)). The PDA extended the reach of the Civil Rights Act:

(k) The 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; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title [42 U.S.C. § 2000e-2(h)] shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

18. 29 C.F.R. § 1604.10 (2007) (providing that disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment).

19. Debra Rowland, The Boundaries of Her Body: The Troubling History of Women's Rights in America 165-66 (2007).

20. See Piantanida v. Wyman Ctr., Inc., 116 F.3d 340 (8th Cir. 1997) (holding that a parent's decision to remain at home with a child does not qualify as a pregnancy-related condition for purposes of the PDA); Fleming v. Ayers & Assocs., 948 F.2d 993 (6th Cir. 1991) (determining that a child's medical condition does not qualify as related to pregnancy under Title VII); Jirak v. Fed. Express Corp., 805 F. Supp. 193 (S.D.N.Y. 1992) (finding policies excluding menstrual cramps as a condition related to pregnancy or childbirth do not violate the PDA).

21. In 1978, successful in-vitro...