Hall v. Nalco Co.: Redefining Female Infertility

• Author: Erin Percy
• Pages: 353-385

Any errors in this Note are my own. As to the rest, I owe thanks to Professor William R. Corbett for his seemingly measureless knowledge and patience. I am also grateful to my parents and Jace for their support in this and all my endeavors.

Page 353

Biologically, men and women both suffer from infertility problems.¹ Emotionally, both members of a couple experience the agony of an inability to conceive, whether the cause of the infertility may be attributed to the male or female partner. Legally, however, some federal courts have chosen to treat a woman's infertility differently than a man's infertility.

According to the Pregnancy Discrimination Act of 1978 (PDA), sex discrimination includes discrimination on the basis of "pregnancy, childbirth and related medical conditions."² During the past two decades, several courts have considered whether the "related medical conditions" language of the PDA protects a female employee who receives treatments for infertility. Some courts have answered in the negative,³ while at least two district courts have answered in the affirmative.⁴ These cases have inspired numerous scholarly articles arguing the pros and cons of recognizing infertility protection in the PDA.⁵ On July 16, 2008, the United States Court of Appeals for the Seventh Circuit weighed in on the debate. In Hall v. Nalco Co.,⁶ the Seventh Circuit held that because only women receive procedures such as in vitro Page 354 fertilization (IVF), and IVF relates to a woman's capacity to bear children, discrimination based on a female employee's infertility treatment constitutes sex discrimination under the PDA.

The Seventh Circuit erred in its holding. This Note argues that Hall employed language from an inapposite United States Supreme Court case to stretch the PDA and dodge the real question of the case: whether a woman's fertility is protected by the PDA. Part I of this Note outlines the history of sex discrimination and the PDA. Part II offers a short background on infertility and discusses the policy reasons for and against protecting a woman's infertility under the PDA. Part III presents the facts of Hall, its procedural history, and the Seventh Circuit's decision. Part IV analyzes the Supreme Court case of International Union v. Johnson Controls, on which the Seventh Circuit relied in Hall. Part IV also summarizes other courts' analyses of the PDA's scope and analogizes the infertility issue to the similar debate concerning whether the PDA protects a woman's right to oral contraceptives. Part V elaborates on the error in the Seventh Circuit's reasoning in Hall. Finally, Part VI discusses the proper avenues of redress available to a plaintiff who experiences adverse employment action based on her infertility. This Note concludes that the PDA is inapplicable to a plaintiff who is fired for missing work to receive IVF.

I Discrimination On The Basis Of Sex Or Pregnancy

Within Title VII of the Civil Rights Act, the PDA protects female employees from adverse employment actions based on pregnancy.⁷ Title VII prohibits discrimination "because of" sex, and the PDA adds pregnancy and childbirth to the definition of sex.⁸ Thus, firing someone because she is pregnant is a form of gender discrimination in violation of Title VII.⁹

A Title VII of the Civil Rights Act

The purpose of the Civil Rights Act of 1964 is to "vindicate human dignity,"¹⁰ and Title VII pursues that interest by prohibiting discrimination in the employment realm.¹¹ Title VII of the Civil Rights Act of 1964 prohibits adverse employment actions based on Page 355 an employee's race, color, religion, national origin, or, most importantly for the purposes of this Note, sex.¹²

There are two main theories under which an employee may assert a Title VII sex discrimination claim: disparate treatment or disparate impact.¹³ Disparate treatment claims allege different treatment "because of" or "based on" gender.¹⁴ A plaintiff claiming disparate treatment must show that her employer "intentionally disfavored women."¹⁵ Courts have recognized that it is not always self-evident that an employer's adverse employment action is "because of" a plaintiff's membership in the protected class.¹⁶Consequently, in McDonnell Douglas Corp. v. Green, the Supreme Court established a burden-shifting analysis for disparate treatment claims lacking direct evidence of discrimination.¹⁷ Though McDonnell Douglas dealt with a claim of racial discrimination, courts have modified the framework to fit cases dealing with other protected classes.¹⁸ For example, in a sex discrimination case, a court may require a plaintiff to show: "(1) that she belongs to the protected class (e.g., female or pregnant); (2) that she performed her duties satisfactorily; (3) that she suffered an adverse employment action; [and (4)] that similarly situated employees not in the protected class . . . received better treatment."¹⁹

Disparate impact claims, on the other hand, involve facially neutral employment actions that disproportionately affect a plaintiff based on her sex.²⁰ While disparate treatment cases Page 356 generally turn on intent, disparate impact cases rely on statistics.²¹The burden of proof for a disparate impact claim is initially placed on the plaintiff to show, through statistical evidence, that the employer's policy has a disproportionate impact on the protected class of female employees.²² The burden then shifts to the defendant-employer to assert a business necessity defense. In other words, the employer must show that the policy is based on job performance and not on sex.²³

B Pregnancy Discrimination

Since 1972, the Equal Employment Opportunity Commission (EEOC)²⁴ has maintained "that employment policies . . . that [discriminate against] female employees because of pregnancy, childbirth, and related medical conditions constitute disparate treatment based on sex."²⁵However, the Supreme Court did not initially follow the EEOC's guidance. In 1976, the Court held in General Electric Co. v. Gilbert²⁶ that an employer's failure to provide insurance coverage for disabilities arising from pregnancy did not constitute sex discrimination under Title VII.²⁷ According to the Court, the failure to provide disability benefits for pregnancy did not discriminate between women and men, but rather between pregnant employees and non-pregnant employees, male and female.²⁸ The Supreme Court held that the employer in Gilbert had Page 357 not discriminated on the basis of sex under Title VII,²⁹ reasoning that "[w]hile it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification."³⁰

In response to Gilbert, Congress enacted the PDA in 1978, redefining "sex discrimination" to include discrimination based on pregnancy. Codified at 42 U.S.C. § 2000e(k), the Act states:

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 shall be interpreted to permit otherwise.³¹

The PDA's "dominant principle is nondiscrimination, rather than preference."³² In other words, the PDA obligates employers to treat pregnant women the same as, but not better than, other, non- pregnant employees.³³ Consequently, the PDA does not require an employer to provide leave or benefits for pregnancy that the employer does not provide to non-pregnant employees for "comparable" conditions.³⁴ For example, in Armindo v. Padlocker, Inc.,³⁵ the United States Court of Appeals for the Eleventh Circuit held that the PDA is not violated by an employer who fires an employee for excessive absences, even if those absences were a result of pregnancy, unless the employer overlooks the absences of other, non-pregnant employees.³⁶ Similarly, in Troupe v. May Department Stores Co., the Seventh Circuit rejected a pregnancy discrimination claim from a plaintiff alleging that her employer fired her for tardiness caused by morning sickness.³⁷ The plaintiff in Troupe failed to make out a sex discrimination case because she Page 358 could not prove the employer treated her differently than other excessively absent, non-pregnant employees.³⁸ The Seventh Circuit stated:

The [PDA] does not, despite the urgings of feminist scholars [,] require employers to offer maternity leave or take other steps to make it easier for pregnant women to work . . . .

Employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees, even to...