In Vitro Fertilization Discrimination

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 What Is In Vitro Fertilization?

In vitro fertilization (IVF) is the fertilization of an egg by a sperm outside a woman’s body. The embryo that results is then inserted into the woman’s body, where it grows and develops just as an embryo that is created in utero. An embryo created through IVF may result in the normal birth of a human infant.

The procedure is utilized by infertile couples who wish to have children. Today, reportedly, medical practitioners perform more than 270,000 IVF procedures annually in the United States, and they result in more than 74,000 births each year.

What Is Pregnancy Discrimination?

Under the Pregnancy Discrimination Act (PDA) and laws in many states, it is illegal for employers to discriminate in hiring, promotion, discipline, and termination of employment on the basis of pregnancy. The PDA only applies to employers with at least 15 employees. The U.S. Equal Employment Opportunity Commission (EEOC) handles claims made by employees that they have suffered discrimination for their pregnant status. Reportedly, in 2006, the EEOC handled 4,901 claims which resulted in various organizations having to pay out $10.4 million in damages.

Under the PDA, it is also against the law for employers to retaliate against employees for opposing employmer practices that involve pregnancy discrimination. Employers also cannot retaliate against their employees for filing an EEOC claim for discrimination, or for testifying or participating in an investigation.

The PDA provides that women who are pregnant or who have pregnancy-related conditions must be treated in the same way as other employees and job applicants who have similar conditions or abilities. Many states have also enacted laws that apply to breast-feeding at work and pregnancy discrimination.

Under the federal PDA, if an employee is temporarily unable to do their job because they are pregnant, employers must make the same accommodations they would make for any other temporarily disabled employee. This includes giving the person reasonable time off or making a temporary reassignment.

However, rulings in federal cases claiming discrimination on the basis of pregnancy have sided with employers and have narrowed the law so that it offers less protection to pregnant women in the workplace. Recent rulings in federal cases siding with employers who support a narrow interpretation of the law have fueled efforts by some state legislatures to enact state laws banning discrimination.

So, state legislatures have passed state laws that offer greater protection than federal law. In 2015, the state of Illinois passed a law that employers must provide pregnant workers who request them an increased number of bathroom breaks or longer ones, rest periods, light duty, job transfers, leave time or other accommodations, unless doing so creates an unreasonable hardship for the employer.

Eleven other states have also passed laws requiring employers to provide reasonable accommodations to pregnant workers. These laws have taken effect in Delaware, Minnesota, West Virginia and the District of Columbia. Since 2011, Alaska, Connecticut, Maryland and New Jersey have also enacted similar laws providing protection against discrimination on the basis of pregnancy.

California, Louisiana and Hawaii, have long had laws that require employers to provide accommodations to women who are pregnant. Texas does not have a law that applies to private employers, but Texas does require county and municipal governments in Texas to make reasonable efforts to accommodate their pregnant employees. The law does not apply to the Texas state government.

All told, twenty-three states now have laws that prohibit pregnancy discrimination. The most strict from the perspective of employers are in Colorado, Hawaii, Illinois, New Jersey, North Dakota, Vermont and the District of Columbia. They require all employers to have the pregnancy protections that women most need and want.

Other states have passed laws requiring reasonable accommodations for public employees. A reasonable accommodation is usually defined as allowing a pregnant woman access to accommodations to keep her safe at work, such as seated workstations, more frequent bathroom breaks and the right to carry water around the workplace. Some state laws require the employer to prove that an accommodation would impose “undue hardship” on the employer if the employer wants to deny a request for an accommodation.

Does the Prohibition of Pregnancy Discrimination Cover In Vitro Fertilization?

Federal courts have recently held that an employer may not act against an employee who becomes pregnant through in vitro fertilization. Federal law also prohibits an employer from firing an employee for having an abortion.

Is In Vitro Fertilization Protected By Other Laws?

Discrimination based on pregnancy may also be covered by laws against discrimination on the basis of sex. In some cases, age discrimination may also apply. Sexual orientation is a personal characteristic that is protected from discrimination. In 2020, the U.S. Supreme Court held that the prohibition against discrimination on the basis of gender in Title VII of the Civil Rights Act of 1964 (Title VII) includes employment discrimination against a person on the basis of sexual orientation or transgender status.

Women in a homosexual relationship may also be protected by state anti-discrimination laws if they live in a state which provides such protection.

It is questionable whether there are legal theories in tort law that address the losses arising from treatment with IVG technology, e.g. the failure of the procedure to result in pregnancy and birth. The courts have often tried to apply traditional theories of breach of contract and tort law to IVF technology.

Indeed, many creative attorneys have worked to recover compensation for their clients on the basis of theories such as intentional infliction of emotional distress or even loss of property rights. They have met with limited success; usually success comes with claims of breach of contract or professional negligence on the part of the medical provider. Results vary widely depending on the specific facts of each case.

Much media attention has been given to a New Jersey couple who filed a civil suit in federal court against a fertility clinic in New York claiming negligence, infliction of emotional distress and fraud for the failure of 15 embryo transfers over a period of four years. When they consulted a different facility, they learned that the treatment they had received in the first facility in New York had been substandard. Such medical errors could certainly be the basis for a suit for medical malpractice. However, a woman or couple would have to prove economic losses.

In some states, a claim for infliction of emotional distress can fail if there is no physical injury that comes with the emotional injury. For example, in a case in Utah, an infertile couple chose a sperm donor who resembled the husband. The clinic switched donors without the couple’s knowledge or consent. The couple successfully had three children, but they did not resemble the husband. While the couple was distressed about the clinic’s negligence, they had not suffered any physical injury or financial losses. The court ruled that they had no legal basis for their complaint, because common law forbids recovery for the negligent infliction of emotional distress without any physical injury.

Other people who have had IVF treatments have made the same or similar claims and have been unsuccessful for the same reason.

In Rhode Island, women whose embryos were lost or destroyed by their IVF providers succeeded when they alleged loss of property The court permitted the suit to go forward and even allowed the women to claim infliction of emotional distress because the emotional distress accompanied the loss of irreplaceable property in light of the unique qualities of IVF.

The federal Family and Medical Leave Act (FMLA) may offer pregnant employees more rights. The FMLA allows pregnant women to take time off due to complications from a pregnancy, a childbirth, or to care for their newborn child. Even employees who have been working for a company for less than a year may be able to take leave according to certain federal and state family and medical leave laws. This may apply to women who need time off work because they have undesirable side-effects from IVF treatment.

Does An Employer Have Any Defenses?

In vitro fertilization is subject to the same laws as pregnancy discrimination, so many of the same defenses would be available to an employer. This includes the “causation” requirement, i.e. the requirement that the employee has to prove that the employer took adverse action against her because she is pregnant or because she had IVF treatment and not for any other reasons.

Due to opposition to in vitro fertilization in certain religious circles, employers who are religious organizations can assert that they are exempt from discrimination laws because of the religious exemption clauses built into those discrimination laws. The religious employer can also say that the First Amendment to the U.S. Constitution prohibits government interference with their discriminatory practices.

Do I Need a Lawyer?

An experienced employment discrimination lawyer can give you valuable advice for dealing with pregnancy discrimination issues related to IVF treatments, or in filing any other claims that in vitro fertilization discrimination might require.

If you have received unsatisfactory IVF treatment or treatment you think is substandard in any way, you want to consult a personal injury attorney to help you investigate whether you have a claim for medical malpractice or other torts.

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