Boston Employment Lawyer Blog

In 1978, Congress passed The Pregnancy Discrimination Act of 1978, which acts as an amendment to
Title VII of the Civil Rights Act of 1964. The Act makes clear that "[d]iscrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII." The Act further states that "[w]omen affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations."

Recently, the Seventh Circuit in Hall v. Nalco interpreted the Act to apply to women who undergo infertility treatments. In that case, the plaintiff, Cheryl Hall, was discharged after requesting further time off to undergo vitro fertilization. In 2003, Ms. Hall underwent an embryo transfer. To ensure adequate time to recuperate, her physician recommended that she take time off after the procedure. Following her doctor's advice, Ms. Hall took off approximately 20 days from work. Unfortunately, the embryo transfer failed, necessitating a second procedure. Despite receiving approval for a second leave of absence, Ms. Hall's supervisors laid her off due to absenteeism associated with her infertility treatments.

If Ms. Hall had taken time off to give birth or prepare for her child's birth, there would have been little question that her employer's decision to terminate her employment violated The Pregnancy Discrimination Act of 1978. This case, however, hinged on Ms. Hall's infertility treatment. Not surprisingly, the Seventh Circuit allowed Ms. Hall's case to proceed forward to a jury trial, reasoning that infertility is not a gender-neutral condition:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

According to statistics published by the MayoClinic, estimates reveal that 10% to 15% of couples suffer from infertility, with female infertility accounting for 40% to 50%. The Seventh Circuit's decision will no doubt benefit thousands of employees nationwide.

The Age Discrimination in Employment Act (ADEA) and the Fair Employment Practices Act of Massachusetts prohibit employers from discriminating against workers 40 years old or older based on age. A key, often overlooked, difference between these two statutes exists. Unlike the Fair Employment Practices Act, employers that wrongfully discriminate against employees based on age are not responsible for compensatory damages for pain and suffering. The First Circuit in Collazo v. Nicholson recently held that such recovery is not available under the ADEA. In doing so, however, the court also noted Section 626(b)'s broad language allowing federal courts to award "such legal or equitable relief as may be appropriate to effectuate the purposes of the Act."

Courts have interpreted Section 626(b)'s broad language to include such injunctive relief as reinstatement or promotion where necessary to effectuate the ADEA's purpose. For whatever reason, courts continue to deny those who suffer discrimination the right to recover emotional distress damages under Section 626(b). Failing to consider the upheaval and devastation that can result from an unlawful termination constitutes a cramped interpretation of the statute.

Imagine that you just turned 55 years old. You have been with your company since graduating from college. Your son or daughter just entered college. Tuition is steep, but you've planned for this and feel ready. Your company recently appointed a bright, young CEO. During a staff meeting, the new CEO comments that the average age of employees at your company is 55. What the CEO says next is somewhat troubling: "We need young talent with fresh ideas." Despite your stellar performance and the company's well-known financial success, you find yourself terminated months later under the auspices of a re-organization.

For the first time in a very long time, your future is unclear. Despite your hard work and dedication, goals that you were poised to achieve are suddenly out of reach. You break the news to your child that s/he will need to transfer to a local university where the tuition is less expensive. Months pass with no comparable job offer. You and your spouse come to the realization that the mortgage payments are just too much. Relocation becomes necessary. The resulting financial turmoil has placed a great deal of stress on your marriage. You and your spouse begin to attend marriage counseling.

Unfortunately, the fact pattern described above is not uncommon. An Business Week article entitled Would We Fire Older Workers If We Could? paints an insightful picture of the uphill battle that older workers face. The emotional trauma that can result from age discrimination and losing one's job is not far fetched. Section 626(b) explicitly calls for equitable relief. To effectuate the purpose of the ADEA, equitable relief should be interpreted to include compensatory damages for pain and suffering.

Handicap discrimination claims continue to make headlines. Patrick Brady is the latest employee to successfully file suit and prevail against Wal-Mart. Brady, who suffers from cerebral palsy, worked at Wal-Mart as a pharmacy assistant. In joining Wal-Mart, Brady brought with him two years of experience working at a local pharmacy. Despite being qualified, Brady's supervisor assumed that he was incapable of doing the job because of his cerebral palsy. Based on this unfair and unwarranted perception, Brady's supervisor stripped him of his pharmacy assistant functions and transferred him to the personnel department.

No longer a pharmacy assistant, Brady eventually resigned and filed suit against Wal-Mart for failing failing to participate in the interactive process and refusing to accommodate his disability. Amazingly, although plainly evident that Brady's cerebral palsy impaired his motor skills, Wal-Mart argued that it had no obligation to accommodate his disability. As expected, the court disagreed. Indeed, while the burden generally lies with employees to inform the employer of the need for an accommodation, the burden shifts to the employer where the disability is obvious, as in Brady's case:

[A] situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees. We therefore hold that an employer has a duty reasonably to accommodate an employee's disability if the disability is obvious-which is to say, if the employer knew or reasonably should have known that the employee was disabled.

For more information, please visit the Second Circuit's full opinion in Brady v. Wal-Mart