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“Childbearing capacity” discrimination

March 20th, 2014  |  Kathy Kapusta

While, as the saying goes, you can’t be “just a little bit pregnant,” a federal district court in Michigan recently stated that adverse employment actions taken on account of “childbearing capacity,” are valid claims under Title VII. Although the court was not willing “to go as far as to conclude that a non-pregnant plaintiff” could bring a Pregnancy Discrimination Act claim if in-vitro fertilization was being used, it refused to dismiss an employee’s allegations that she was targeted for her intent to become pregnant after announcing that she would be undergoing IVF. In the court’s opinion, the employee properly characterized her claim as one for “childbearing capacity” discrimination.

In this case, the employee, a lead dental instructor, told her supervisor that she would be undergoing IVF in an effort to become pregnant. While receiving the treatment, her supervisor allegedly told her she had to work as a “teaching assistant” instead of a lead instructor to accommodate the procedure and allow her to sit and told her to work sitting down “because you are being pumped with so many hormones.” After completing the procedure, the employee took a week off. On the day she returned to work, she suffered a miscarriage.

Too focused on babies. The employee alleged that she was demoted the next day, her job title was officially changed the next week, and her job status changed from full-time to part-time. She claimed that her supervisor told her shortly thereafter that she was “not a good cheerleader in the classroom” and was “more focused on babies.” The supervisor also allegedly asked her if she intended to have additional medical procedures “regarding her desire to bear children.” Not surprisingly, the employee sued, asserting gender discrimination claims under Title VII, Michigan’s Elliot-Larsen Civil Rights Act, and the PDA.

Use of IVF. The court initially observed that the majority of lower courts agree with the Sixth Circuit that pregnancy is a necessary prerequisite to a PDA claim. As to the specific issue of whether the PDA applies to women who are receiving IVF, however, the court pointed out that only the Seventh Circuit has ruled that it does. Unwilling to find that a non-pregnant plaintiff who is using IVF falls under the PDA’s protections, the court agreed that adverse employment actions taken on account of childbearing capacity affect only women and are therefore valid claims under Title VII.

PDA claim. As to her PDA claim, the court noted that she alleged that she was pregnant and suffered a miscarriage; that she was qualified for the lead dental instructor position; and that she was an excellent employee who received good performance reviews and merit increases. Although the employer argued that she was demoted because she had not yet received a required certification, the court found that her allegations were sufficient to make an initial showing that she was qualified for her job.

Moreover, her allegation that she had a miscarriage implied that she was pregnant; thus, she suffered a pregnancy-related condition. Because she alleged that she was demoted the day after her miscarriage, there was a sufficient inference that her demotion was caused by her miscarriage. Thus, she stated a plausible claim under the PDA.

Gender discrimination. The employee also alleged that she was demoted and phased out of a job for which she was qualified because of gender discrimination based on her desire and ability to become pregnant. Here, the court observed that the U.S. Supreme Court, in Int’l Union v Johnson, has held that gender discrimination claims based on childbearing capacity fall under Title VII’s protection. Noting that the employee’s particular method of trying to become pregnant was through IVF, the court pointed out that courts are split as to whether firing an employee who has taken time off to undergo IVF is permissible under Title VII.

Childbearing capacity discrimination. Declining to reach this issue, the court stated that the employee did not claim that was why she was fired. Rather, she contended that she was specifically targeted because of her desire to become pregnant and bear children. Childbearing capacity discrimination, which is gender-based, is exactly the type of discrimination that Title VII was designed to cover in order to combat the view of women as marginal workers, the court stated.

Noting that the reasoning behind Title VII supports the employee’s claim, the court observed that she was a member of a protected class by virtue of being a woman. She also alleged that she was qualified for her job, that she was an excellent employee who received good performance reviews and merit increases, and that other similarly situated employees who were not seeking to become pregnant were treated more favorably.

In addition, she alleged that after she made it known that she was attempting to become pregnant through the use of IVF, and after her miscarriage, her employer became concerned about “future endeavors into child bearing.” Moreover, other similarly-situated employees, who were not seeking to become pregnant and had similar records and positions, were not demoted or terminated. Further, the employee contended that her employer’s reasons for demoting her and terminating her were pretextual. Although the employer disputed the employee’s qualifications for the position, the court pointed out that factual disputes were not before it on a motion to dismiss. Accordingly, the employee was able to advance her claim.