In preparing for a recent mediation, I learned that that there has not been a verdict for a plaintiff presenting a pregnancy discrimination case in Kentucky for fifteen years. That, however, does not mean that the cause of action is dead. Employers should remain cognizant that the Pregnancy Discrimination Act prohibits employers from discriminating against female employees for “pregnancy, childbirth, or related medical conditions”. In fact, since the Hall v. Nalco Co. decision was rendered by the 7th Circuit in 2008, Courts have consistently interpreted “related medical conditions” to include pre-pregnancy procedures such as in vitro fertilization procedures. Protecting yourself from a discrimination claim in this context may present unique difficulties as an employers’ institutional knowledge of an employee’s medical condition may depend on the degree to which an employee feels comfortable disclosing the reason for her medical treatment to her supervisor. Of course, employers who intend to take either an active or passive adverse employment action against a female employee must be prepared to articulate a legitimate, non-discriminatory reason for the adverse employment action. Employers should keep in mind that an adverse employment decision based upon a female’s medical condition, or absence from work due to an unspecified medical condition, could result in the first favorable verdict for a Plaintiff alleging pregnancy discrimination in recent memory.
Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or firstname.lastname@example.org