43 Trial Lawyer • Summer 2022 By Talia Yasmeen Guerriero OTLA Guardian A myriad of challenges face Oregon employees who are trying to conceive as well as those who become pregnant, with only limited—but increasing — remedies in some scenarios. While many people have a general sense that discriminating against a pregnant worker is illegal, just how far does the law go to provide pregnant workers and workers trying to conceive the types of protections they truly need? Employees trying to conceive Sierra was in a same-sex marriage with her wife, Jane, when they decided to have a baby. However, their initial excitement quickly turned to deflation after reading that their employer’s health benefits seem to impose something of a “queer tax.” In order to qualify for any fertility services, Sierra was required to engage in (1) “six months of regular, unprotected sexual intercourse” or (2) “six months of therapeutic donor insemination.” While unprotected sexual intercourse generally costs most heterosexual couples nothing, each round of “therapeutic donor insemination” can cost LGBTQ couples thousands of dollars in order to meet the definition of “infertility” for any coverage. While still a commonplace insurance provision, such discriminatory health benefits — clearly attributable solely to employees’ sexual orientation or gender identity — can form the basis of an employment discrimination claim as articulated in a recently filed lawsuit in New York. See, Goidel v. Aetna, Inc., https://nwlc.org/wp-content/ploads/2021/ 09/2021.09.13-Complaint.pdf; Lisette Johnson, Ins. Circular Letter No. 3, “Health Insurance Coverage of Infertility Treatments Regardless of Sexual Orientation or Gender Identity,” N.Y. Dep’t of Fin. Servs. (Feb. 23, 2021), https://www.dfs.ny.gov/industry_guidance/ circular_letters/cl2021_03. The next day, Sierra informed her employer’s human resources department that she was looking to get pregnant, and she inquired about her benefits coverage. Her employer terminated her within hours of her inquiry, stating that Sierra’s “future plans were no longer a good fit” for the company. Since Sierra wasn’t yet pregnant, what are her potential legal remedies? The EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues cites to several decisions indicating a court would likely extend the Pregnancy Discrimination Act (PDA) and ORS 659A.030 to Sierra’s stated intention to become pregnant. At least one Oregon district court has done so, stating the purpose of the PDA “is best served by extending its coverage to women who are trying to become pregnant.” Cleese v. Hewlett-Packard Co., 911 F. Supp. 1312, 1318 (D. Or 1995). But, more recently, Judge Anna Brown distinguished Cleese and refused to apply the PDA to employees “who are ‘planning to try’ to become pregnant at some point in the future.” Barnowe v. Kaiser Found. Health Plan of the NW, No. CV 03-1672BR, 2005 WL 1113855, at *4 (D. Or May 4, 2005). In other words, these are murky waters. Could Sierra turn to ORS 659A.029, which defines “because of sex” to include “pregnancy, childbirth and related medical conditions or occurrences”? Perhaps a court would find that a “pregnancy-related occurrence” encompasses a worker trying to conceive, but I have not yet found any case law interpreting the term. Further, ORS 659A.030 prohibits discrimination against someone’s Talia Yasmeen Guerriero See Pregnant or Trying 44 Pregnant or Trying to Conceive: Challenges Facing Oregon Employees
RkJQdWJsaXNoZXIy Nzc3ODM=