Female Server States Claim For Pregnancy Discrimination, Bias Against In Vitro Fertilization

In Govori v. Goat Fifty LLC, 10 Civ. 8982 (S.D.N.Y. March 30, 2011), the Southern District of New York held that plaintiff adequately stated a claim for pregnancy discrimination.

Plaintiff contended that she was fired after announcing her plans to undergo in vitro fertilization (“IVF”), and sought relief under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (42 U.S.C. § 2000e-2, 2000e(k)); New York State Executive Law § 296(1); and New York City Administrative Code § 8-107(a).

Defendant (the owner and operator of the restaurant where plaintiff worked) moved to dismiss on two grounds:  (1) women undergoing IVF are not members of a protected class under the PDA because infertility is a gender-neutral condition; and (2) even if discrimination against women undergoing infertility treatments is prohibited by Title VII, plaintiff failed to adequately plead facts showing that she was in fact fired because of her decision to undergo infertility treatments.  The court rejected both.

As to the first issue, the court applied the reasoning of Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008), which held that a female employee who claimed she had been fired for taking time off to undergo IVF procedures stated a cognizable sex-discrimination claim under Title VII.  Hall reasoned:

[e]mployees 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, … [plaintiff] was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

The Hall decision, the SDNY held,

correctly noted [that] only women undergo surgical implantation procedures; therefore, only women and not men stand in potential danger of being fired for missing work for these procedures. An employer who fires his female employee for missing work for IVF treatment discriminates not on the basis of reproductive capacity or infertility alone, but on the basis of medical conditions related to pregnancy. Thus, women who are fired for undergoing IVF are protected from such discriminatory, sex-based action by the terms of the PDA.

As to the second issue, the SDNY reiterated that McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) “sets forth an evidentiary standard, not a pleading requirement” and that an “employment discrimination plaintiff need not plead a prima facie case of discrimination.”  (Citing Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510, 515 (2002).)  “Rather, as long as the complaint gives the defendant “fair notice of [the plaintiff’s] claim and the grounds upon which it rests,” and “indicate[s] the possibility of discrimination and thus present[s] a plausible claim for disparate treatment,” the complaint satisfies the strictures of” the federal pleading rule, Fed. R. Civ. P. 8(a).

Here, plaintiff “pleaded facts sufficient to allege a plausible claim of employment discrimination”.  In particular, plaintiff:

was fired the day after she announced that she was moving from the evaluation and diagnostic phase of IVF to the treatment stage. According to the complaint, [defendant] prided itself on the friendly and indeed flirtatious atmosphere that its servers helped to create. These facts are sufficient to create an inference that [plaintiff] was fired because her IVF treatments would require that she miss time from work, or because her treatment and subsequent pregnancy would put a damper on the kind of atmosphere the bar was attempting to create for its customers.

Defendant contended that (1) plaintiff was fired because of her “unpleasant demeanor”, (2) defendant employed another pregnant server when plaintiff was fired, and (3) plaintiff acknowledged that her two female supervisors were supportive of her maternal ambitions.  The court found that while these facts “may bear on whether [plaintiff] can ultimately establish a prima facie case of discrimination and intentional discrimination”, they did not establish that plaintiff “failed to adequately plead a disparate treatment claim under Title VII.”

UPDATE:  Since this decision was issued, the SDNY granted summary judgment to defendants, which the Second Circuit affirmed.