IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARYELLEN BRADY, : CIVIL ACTIONPlaintiff :

:v. : CASE NO. 13-CV-00144

:BSSC, LLP, :

Defendant :

PLAINTIFF’S BRIEF

Introduction

Plaintiff, Maryellen Brady, by and through her undersigned attorney, hereby files this

Brief in opposition to defendant’s motion to dismiss in the above-captioned matter.

Statement of Facts

Plaintiff, Maryellen Brady (Brady), was a long time employee of defendant, BSSC, LLP

(BSSC). Compl. at 2 ¶10, 12. In 2011, Brady decided she wanted to get pregnant, however, she

suffered from infertility and was unable to fulfill her natural desire conceive a child. Compl. at 2

¶13, 14. Due to her medical condition, Brady was forced to resort to a surgical impregnation

procedure known as In Vitro Fertilization (IVF). Compl. at 2 ¶15. Accordingly, she took

seventeen days off work in order to complete the ultimately unsuccessful procedure. Compl. at 2

¶16, 17. Disappointed that her desire to get pregnant remained unfulfilled; Brady applied for a

leave of absence in order to complete another IVF treatment. Compl. at 2 ¶17; Mot. Dismiss at 1

¶2. Five days before she expected her leave of absence to commence, Brady’s request was

denied. Compl. at 3 ¶21; Mot. Dismiss at 1 ¶3. Although her supervisor claims that no one else

could cover for her during the requested leave, others similarly situated, who did not have a

condition related to pregnancy, have been granted leaves of absence for medical treatments.

Compl. at 3 ¶20, 24. Brady was terminated by defendant upon giving notification that she would

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not be able to report to work in order to pursue IVF treatments. Compl. at 3 ¶22, 23. Mot.

Dismiss at 1 ¶4, 5. Furthermore, Brady was denied insurance coverage from her employers

insurance for the infertility treatment even though they cover infertility products. Compl. at 3

¶25-27.

Following her termination, Brady filed a complaint with This Court on January 29, 2013,

for defendant’s unlawful violation of the Civil Rights Act of 1964, as amended by the Pregnancy

Discrimination Act. Compl. at 1 ¶1. On February 8, 2013, defendant filed a motion to dismiss

plaintiff’s Pregnancy Discrimination Act cause of action pursuant to Federal Rule of Civil

Procedure 12(b)(6). Mot. Dismiss at 2 ¶9.

Statement of the Issue

Whether, as a matter of law, infertility and infertility treatments are related medical

conditions to pregnancy protected by the Pregnancy Discrimination Act?

Suggested Answer: Yes

Argument

Congress amended Title VII of the Civil Rights Act of 1964 with the Pregnancy

Discrimination Act (PDA) in order to categorize discrimination on the basis of “pregnancy or

related medical conditions” as discrimination on the “basis of sex.” 42 U.S.C.A § 2000e (k)

(West 2013).

At issue is a pure question of law as to whether infertility and infertility treatments are

covered under the PDA as conditions related to pregnancy. The third circuit has never directly

addressed the issue at hand; hence, in absence of immediate precedent, all sources serve as

persuasive opinions and are not binding on This Court.

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In order to succeed on a Rule 12(b)(6) motion to dismiss, the moving party must show

that, taking all the information in the complaint as true, the plaintiff failed to state a claim upon

which relief could be granted. Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 566 U.S. 662, 678

(2009).

I. The plain language of the Pregnancy Discrimination Act is ambiguous because there have been multiple interpretations of the term “related medical conditions,” as such, The Supreme Court instructs the lower courts to construe the statute in accordance with congressional intent.

The Supreme Court has stated, “the first inquiry of statutory interpretation is to look at

the plain meaning of the text at issue; if the terms are unambiguous then the inquiry must cease.”

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The Pregnancy Discrimination Act (PDA)

states that the term discrimination on the “basis of sex includes discrimination on the basis of

pregnancy, childbirth or other related medical conditions.” 42 U.S.C.A § 2000e (k). Accordingly,

ambiguity in the text is determined by reference to the “context of the language at issue and the

broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. at 341. The

purpose of the PDA is to afford women protection form adverse employment practices for

conditions related to a woman’s childbearing capacity. See UAW v. Johnson Controls, Inc., 499

U.S. 187, 206-07 (1991) (holding that an employer cannot discriminate against women because

of their reproductive capacity). When read in light of Johnson Controls and in the context of

Title VII as a whole, the PDA implies a broad interpretation of the term “related medical

conditions.”

Furthermore, the third circuit has stated that the plain language of the statute is

ambiguous when, “read in its ordinary and natural sense, the text is susceptible to different

interpretations.” In re Philadelphia Newspapers, 599 F.3d 298, 304 (3d. Cir. 2009). Some courts

have interpreted the term “related medical conditions” broadly, so as to encompass infertility,

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while others have taken a narrower more restrictive approach.. See Pacourek v. Inland Steel Co.,

858 F. Supp. 1393, 1403 (N.D. Ill. 1994) (holding that infertility is a condition related to

pregnancy); See also Krauel v. Iowa Methodist Medical Center, 95 F.3d 674, 679 (8th. Cir.

1996) (noting that infertility is not a condition related to pregnancy). According to the third

circuit definition of ambiguous terms, the different interpretations of the PDA, as evidenced by

the circuit split, is sufficient to color the phrase “related medical conditions” to be necessarily

ambiguous so as to require further inquiry in its construction. The Supreme Court has stated that,

“where the language of a statute is ambiguous, it is necessary to construct a definition of the

ambiguous text that is consistent with the congressional intent of the statute.” See Mohamad v.

Palestinian Authority, 132 S.Ct. 1702, 1707 (2012). The Supreme Court has made it clear that a

courts interpretation of a statute should be consistent with congressional intent. See Griffin v.

Oceanic Contractors, 458 U.S. 564, 575 (1982).

A. Infertility is a pregnancy related medical condition because, as a matter of law, the plain language of the PDA, when coupled with the legislative history of the act, supports the conclusion that discrimination of a woman based on infertility is really discrimination based on her child bearing capacity.

Specific language in the legislative history of the PDA indicates that Congress intended a

broad interpretation of the text because the PDA was meant to attain broad protection for the

whole range of matters concerning the child bearing process, including a woman’s childbearing

capacity. H.R. Rep. No. 95-948, at 4 (1978), reprinted in 1978 U.S.C.C.A.N. at 4752; UAW v.

Johnson Controls, Inc., 499 U.S. at 206-07 (1991).

Congress adopted the PDA in response to the narrow holding of The Supreme Court in

Gen. Elec. Co. v. Gilbert. H.R. Rep. No. 95-948, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. at

4750, 1978 WL 8570; see Cal. Fed. Sav. And Loan Ass’n v. Guerra, 479 U.S. 272, 277 (1987);

see also Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1400 (N.D. Ill. 1994). In Gilbert, the

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court held that an employer’s policy excluding women from insurance coverage based on

pregnancy related disabilities was not discrimination on the basis of sex because the provision

was not gender-related, but rather it was a condition-related policy. General Elec. Co. v. Gilbert,

429 U.S. 125, 135-36 (1976). The dissenting justices concluded that an adverse employment

practice stemming from a disability exclusively affecting women was discrimination under Title

VII, further noting that a “classification revolving around pregnancy [] is strongly sex-related.”

Id. at 147, 149 (Brennan, J., dissenting). In a separate dissenting opinion, Justice Stevens noted,

“that it is the capacity to become pregnant which primarily differentiates the female from the

male.” Id. at 162 (Stevens, J., dissenting). In adopting the PDA, Congress expressly made clear

that “the dissenting justices correctly interpreted the act…as a reasonable interpretation and

implementation of the broad social objectives of Title VII.” H.R. Rep. No. 95-948, at 2 (1978),

reprinted in 1978 U.S.C.C.A.N. at 4750.

The legislative history of the act illustrates Congress’ distaste with narrow interpretations

of Title VII, noting that “narrow interpretations erode the national policy of nondiscrimination.”

Id. at 3. Congress expressly broadened the definition of “sex discrimination” to include

“pregnancy-based discrimination” in order to comport with the social objectives of Title VII,

wherein a woman should not be subjected to discrimination because she attempts to fulfill her

natural desire to bear a child. See Id. at 4. Furthermore, Congress expressly states that the phrase

“pregnancy [] and related medical conditions” was “broadly phrased” so as to “extend to the

whole range of matters concerning the child bearing process.” Id. In light of the aforementioned

language, it is easy to conclude that Congress intentionally construed the phrase “related medical

conditions” broadly in order for it to be interpreted broadly by the judiciary. Therefore, it is

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essential to construe the language of the PDA in accordance with Congress’ intent that it be

interpreted broadly so as to extend to discrimination of women based on infertility.

Furthermore, a broad interpretation of the PDA is supported by the broad congressional

objectives evidenced in the congressional record. Remarks from Senator Paul Tsonga stating “

the bill will put an end to [] an unfair system that makes a woman chose between family and

career” show that the legislature intended to prevent adverse employment practices that

incentivize women to forego a family life in order to maintain a job. 124 Cong. Rec. 36818

(1978), reprinted in Legislative History of the Pregnancy Discrimination Act of 1978

(hereinafter referred to as Legislative History) at 185 (1978). Discrimination of a woman based

on infertility directly contradicts the objectives the legislature attempted to employ by forbidding

discrimination based on pregnancy and related medical conditions. It follows that if Congress

intended to afford women an opportunity to participate in both work and family life, an

interpretation of the PDA in accordance with legislative history must necessarily include

discrimination of women based on her desire to bear children. Id.

The proposition is further supported by Rep. Shirley Chisholm’s comments, that the bill

affords “greater protection for women without fear of reprisal for her decision to bear children.”

124 Cong. Rec. 21442 (1978), reprinted in Legislative History at 187. Thusly, the intention of

the bill was to protect the childbearing process and a woman’s decision to undergo that process,

hence, statutory protection to that end, entails an interpretation of the PDA that forbids

discrimination of women because of the desire to become pregnant. See UAW v. Johnson

Controls, Inc., 499 U.S. at 206-07. It seems commonplace to assert that adverse employment

practices against a woman who desires to take time off from work to receive IVF treatments for

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infertility would be protected under the PDA because it is a direct result of her desire to bear

children, a choice Rep. Chisholm believed to be protected under the language of the bill.

Further support for a broad interpretation is echoed by the chief sponsor of the bill,

Senator Harrison Williams, noting that the bill was meant to combat situations where a “woman

becomes a marginal worker because of her capacity to become pregnant.” 123 Cong. Rec. 29385

(1977), reprinted in Legislative History at 61. Moreover, he believed that discriminating against

women where they “might become pregnant” was one of the instances of discrimination the PDA

intended to eliminate. Id. Hence, discriminating against a woman on the basis of her infertility

and desire to remedy her illness by means of artificial insemination is discrimination based on

her capacity to become pregnant and, as intended by congress, should be protected under the

PDA. Further support for this contention is grounded in Rep. Ronald Sarasin’s comments

claiming that the PDA affords women the right to be protected “before, during and after her

pregnancy.” 124 Cong. Rec. 38574 (1978), reprinted in Legislative History at 208.

The Supreme Court also reads the PDA as broad and expansive. See UAW v. Johnson

Controls, Inc., 499 U.S. at 206. In Johnson Controls, the defendant company enacted a policy

excluding women from certain jobs because of their potential to become pregnant. Id. at 190.

The court, in turning to the legislative history of the PDA, held that Johnson Controls policy

violated the statute because the policy classifies on the basis of “gender and childbearing

capacity.” Id. at 198. The court further noted that an employer is prohibited from discriminating

against an employee for her capacity to become pregnant. Id. at 206. When reading the plain

language of the PDA, in light of the established congressional intent supporting a broad

interpretation of the act, the term “related medical conditions” encompasses discrimination of

women on the basis of infertility because it is discrimination based on a woman’s childbearing

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capacity, hence, on her potential for pregnancy. See Id. at 206; See also Pacourek v. Inland Steel

Co., 858 F. Supp. 1393, 1401-02 (N.D. Ill. 1994).

Even though The Supreme Court in Johnson Controls emphasized the distinction

between discrimination based solely on fertility and discrimination based on the right of a

woman to bear a child, they ultimately concluded that exclusion on the basis of a woman’s

capacity to bear children was sex discrimination as intended to be covered under the PDA

because the capacity to bear children is gender specific. See Id. at 199; See also Pacourek v.

Inland Steel Co., at 1401. The Supreme Court noted that where exclusion is not gender-neutral

the PDA is violated. Id.

Although, the court, in Krauel held that infertility is not covered under the PDA when the

underlying insurance policy at issue is gender-neutral, the courts reasoning is unpersuasive

because they did not apply Johnson Controls, stating it was “inappropriate, because the policy at

issue was gender-neutral.” Krauel v. Iowa Methodist Medical Center, 95 F.3d 674, 680 (8th. Cir.

1996). However, the court noted, “potential pregnancy [] is a medical condition that is sex

related because only women can become pregnant.” Id. at 680. Also, the court wrongly

concludes that the plain meaning of the statute indicates that “related medical conditions”

extends only to complications arising after conception because specific language in the

congressional record states that the PDA was intended to afford women the right to be protected

“before, during and after pregnancy.” 124 Cong. Rec. 38574 (1978), reprinted in Legislative

History at 208. Such an interpretation, running afoul of the legislatures intent would produce an

erroneous construction of the PDA.

Furthermore, in Newport News, the court noted congress’ disapproval with the narrow

interpretation of Gilbert. Newport News Shipbuilding and Dry Dock v. E.E.O.C., 462 U.S. 669,

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678 (1983). In Newport News, the court invalidated an employer’s insurance policy that placed a

pregnancy limitation on benefits extending to female spouses. Id. at 685. The Supreme Court, in

turning to the legislative history of the PDA, stated that the purpose of the PDA was to “reinstate

Title VII principles” after the erroneous, narrow interpretation of congressional intent evidenced

in Gilbert. See Id. at 683. The court further noted that “treating pregnancy related conditions less

favorably than other medical conditions violated the PDA.” Id. Thus, it follows that where the

employment practices categorically discriminate against infertile women for their capacity to

become pregnant, the PDA is violated. See Id. The court correctly interpreted congressional

intent in light of the legislative history showing that the purpose of the act was to disincentive

narrow interpretations that circumvent the broad objectives of antidiscrimination legislation. See

H.R. Rep. No. 95-948, at 5 (1978).

Therefore, given the legislative history of the PDA, showing that congress intended to do

away with narrow interpretations of Title VII, as evidenced by the congressional record and

Supreme Court precedent in Johnson Controls and Newport News, it is necessary to interpret the

PDA as broad and expansive, so as to include discrimination of women based on infertility

because it is discrimination based on her childbearing capacity.

Although the third circuit has never directly addressed the issue of infertility under the

PDA, other courts have interpreted the statute to include infertility treatments because in reading

the PDA in light of the legislative history and precedent in Johnson Controls, a broad reading of

the text supports the conclusion that discrimination of a female based on infertility is really

discrimination based on her childbearing capacity. See UAW v. Johnson Controls, Inc., 499 U.S.

at 206; See also Pacourek v. Inland Steel Co., 858 F. Supp. at 1401.

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For example, in Pacourek, the court held that a woman, diagnosed with a medical

condition preventing her from naturally becoming pregnant, and subsequently terminated by her

employer for missing work to undergo IVF treatments, was covered under the PDA because a

potential-pregnancy related medical condition is a pregnancy-related medical condition for

purposes of the PDA. Pacourek v. Inland Steel Co., 858 F. Supp. at 1401, 1403. In adopting the

Johnson reasoning, the Pacourek court noted that the intention of the PDA was to “cover a

woman’s intention or potential to become pregnant.” Id. at 1401. The court further stated that

“classifications based on pregnancy and related medical conditions are never gender-neutral.” Id.

It follows that, when a woman is discriminated for her desire or potential to become pregnant the

PDA is triggered, that is “the truism the PDA wrote into law.” Id.

Also, a medical condition that prevents a woman from becoming pregnant is a medical

condition related to pregnancy, the court noted that to hold otherwise would be “illegal under the

PDA because it would constitute discrimination based on the potential or [intention of] becoming

pregnant.” Id. at 1402. In looking at the plain language of remedial statutes, such as Title VII, the

court broadly construes the laws. Id. at 1402 (citing to Stoner v. Department of Agriculture 846

F.Supp. 738, 732 (W.D. Wis. 1994). Hence, the court reads the language of the PDA as

“expansive,” noting that the word “related” suggests an interpretation that “favors inclusion

rather than exclusion.” Id. at 1402. Such an interpretation is consistent with the congressional

intent of the PDA and, also, with Supreme Court precedent instructing lower courts to interpret

statutes to be consistent with their congressional intent. See Griffin v. Oceanic Contractors, 458

U.S. 564, 575 (1982).

Furthermore, following the Johnson line of reasoning, the Pacourek court concluded that

if “potential pregnancy is treated like pregnancy for purposes of the PDA, it follows that

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potential-pregnancy related medical conditions should be treated like pregnancy-related medical

conditions.” Pacourek v. Inland Steel Co., 858 F. Supp. at 1403. The court rejected the argument

that infertility was a gender-neutral condition because, turning to congress’ intent, to “neutrally

discriminate against employees on the basis of [] pregnancy related medical conditions was not

neutral at all.” Id. at 1403. Hence, infertility, being a potential-pregnancy related condition, is,

for purposes of the PDA, a medical condition related to pregnancy. See Id.

Conversely, in Laporta, the court concluded that a woman, terminated for her “inability

to work ten-hour shifts,” because she had taken multiple weeks off work to complete IVF

treatments for her infertility, was not covered under the PDA because “infertility is not a

pregnancy related medical condition.” Laporta v. Walmart Stores, Inc., 163 F.Supp.2d 758, 761-

62, 771 (W.D. Mich.). The Laporta court is unpersuasive because even though they claim there

is “no indication that congress intended for the PDA to cover infertility,” they cite no authority

or specific language from the legislative history of the act to support their assertion. Id. at 770.

Moreover, they use the same line of reasoning in Krauel to conclude that the PDA extends only

to post-conception related medical conditions, however, that distinction is directly contradicted

in Johnson Controls, because The Supreme Court made it explicit that “for purposes of the PDA,

discrimination based on the potential to become pregnant is sex discrimination.” UAW v.

Johnson Controls, Inc., 499 U.S. at 199. Since Johnson Controls makes clear that discrimination

on the basis of “potential pregnancy” is covered under the PDA, it follows that The Supreme

Court was not willing to make a distinction between pre and post conception and, as such, the

reasoning in Laporta does not comport with Supreme Court precedent. See Id.

The seventh circuit is more persuasive because they point directly to Supreme Court

precedent to interpret the statute. In Hall, the court held that a woman employee, fired for taking

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time off work to undergo IVF treatments, had a claim under the PDA because discrimination

based on infertility is discrimination based on her childbearing capacity. Hall v. Nalco Co., 534

F.3d 644, 649 (7th. Cir. 2008). The court turned to the reasoning in Johnson Controls to

conclude that termination of a woman for undergoing IVF procedures is termination because of

the gender-specific quality of childbearing potential because “employees terminated for

undergoing IVF treatments [] will always be [infertile and] will always be women.” Id. at 648-

49.

Similarly, in Erickson, the court held that the PDA applied to infertility because

discrimination based on infertility is discrimination based on a woman’s potential to become

pregnant. Erickson v. Bd. of Governors of State Coll.’s and Univ.’s for Ne. Ill. Univ., 911

F.Supp. 316, 320 (N.D. Ill. 1995). The court adopted the Johnson Controls rationale and placed

emphasis on Congress’ intent that the “PDA prohibited discrimination on the basis of a woman's

ability to become pregnant.” Id. (citing to UAW v. Johnson Controls, Inc., 499 U.S. at 211). The

language in Erickson supports the reasoning in Pacourek and is more on point with the

congressional intent of the PDA.

However, in Saks, the court held that exclusion of infertility treatments from an

employer’s medical plan was not discrimination based on sex because the procedures could

apply to male or female infertility. Saks v. Franklin Convey Co., 316 F.3d 337, 347 (2d Cir.

2003). Although the court concluded that infertility alone was not a related medical condition

under the PDA because reproductive capacity is common to both males and females, the court in

Erickson explicitly denied that contention, stating that a “males infertility does not seek to

achieve pregnancy and thus does not relate to his capacity to become pregnant.” Id. at 346;

Erickson v. Bd. of Governors of State Coll.’s and Univ.’s for Ne. Ill. Univ., 911 F.Supp. at 320.

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Hence, the medical efforts of women to deal with infertility have no goal other than to achieve

pregnancy, thusly, infertility, though it affects both men and women, does not have the same

effect on each gender. See Id. However, the court in Saks noted, “the exclusion of surgeries that

are performed solely on women…might constitute a violation of Title VII.” Saks v. Franklin

Convey Co., 316 F.3d at 347. In Vitro Fertilization is a surgery performed solely on infertile

women, and when a woman is discharged from employment because of her desire to bear a child

and her need to undergo In Vitro Fertilization, it is an exclusion of a female for a surgery

performed solely on that gender, and thusly in violation of the PDA. See Id.

Although the court in Saks concluded that affording infertility protection under the PDA

would “define a class that simultaneously includes equal numbers of both sexes and is yet

somehow vulnerable to sex discrimination,” the reasoning is unpersuasive because, in light of

Johnson Controls precedent, it follows that exclusion of a woman for infertility is invariably

exclusion on the basis of pregnancy, a condition that does not include males because they cannot

get pregnant, and thusly does not define a class that involves both sexes. See UAW v. Johnson

Controls, Inc., 499 U.S. at 206; Saks v. Franklin Convey Co., 316 F.3d at 346.

Therefore, discrimination of an infertile female is discrimination on the basis of her

childbearing capacity and thusly covered under the PDA as a pregnancy related medical

condition; such a construction of the statute comports with the broad interpretation intended by

Congress and advanced by The Supreme Court in Johnson Controls.

II. As a matter of policy, the PDA should be interpreted broadly and should cover infertility as a “related medical condition” because discrimination against women on the basis of her childbearing capacity is strictly against national policy of non-discrimination and procreation.

The legislative history of the PDA explicitly states that “narrow interpretations of Title

VII tend to erode our national policy of non-discrimination.” H.R. Rep. No. 95-948, at 3 (1978),

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reprinted in 1978 U.S.C.C.A.N. at 4751, 1978 WL 8570. It is well established that civil rights

laws were created to afford minorities protection from unfair unemployment practices. Id. at 2,.

From this same vein, the PDA was enacted to broaden the already broad social objectives of

Title VII and thusly require, as a matter of policy, that infertility be covered under the PDA as a

related medical condition. See Id. Female infertility is a related medical condition to pregnancy

because the objective of countering the infertility is to become pregnant, unlike male infertility

where the end-goal is to make someone pregnant. Hence, female infertility is about a woman’s

capacity to become pregnant, a policy objective that Johnson Controls introduced. See UAW v.

Johnson Controls, Inc., 499 U.S. at 199-200; see also Erickson v. Bd. of Governors of State

Coll.’s and Univ.’s for Ne. Ill. Univ., at 320.

Although it can be argued that including infertility under the PDA creates a slippery slope

because on the one hand, it opens the door to other pregnancy related medical conditions such as

abortion and, on the other hand, it would restrict the PDA, so as to incentivize employers to

discriminate against infertile women, This Court should not be deterred from interpreting the

statute in favor of the latter. The slippery slope argument has merit where the court is trying to

draw a fine line, however, where the slope slides both ways it is necessary to construct an

interpretation that best comports with the legislative intent of the statute at issue. See Eugene

Volokh, The Mechanisms of The Slippery Slope, 116 Harv. L. Rev. 1026, 1030, 1081-83. (2003).

“The legislative establishment of policy carries significance…to be given appropriate weight []

in matters of statutory construction.” Id. at 1083 (citing to Moragne v. States Marine Lines Inc.,

398 U.S. 375 (1970))..

Furthermore, inclusion of female infertility into the PDA comports with long-established

national policies regarding procreation. Babies are good for society and the courts should take a

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position that promotes societal growth and familial unity. Also, IVF technology has become

increasingly prevalent over the last decade and the courts should likewise assume a position that

comports with the public policy of advancing technological growth. It is also good for society to

be able to take advantage of this great technology and use it to advance other policy objectives,

such as procreation.

In the present case, infertility is covered under the PDA because Brady was terminated

for her childbearing capacity and her need to receive IVF treatments because of her infertility.

Brady was denied a leave of absence even though others, similarly situated, were granted leave

for non-pregnancy related medical conditions. Thus, the discriminatory employment practices

were not gender-neutral because Brady’s condition was treated differently from others who were

granted leave. The present case is on all fours with Pacourek and should be read in light of the

expansive language echoed by the legislative history.

Conclusion

Infertility and infertility treatments are related medical conditions under the PDA because

the plain text of the statute, when read in light of the legislative history, is meant to be broad and

inclusive. Furthermore, infertility is covered under the PDA because discrimination based on

infertility is really discrimination based on a woman’s childbearing capacity. Also, affording

infertility coverage under the PDA comports with national policies of non-discrimination and

procreation. Therefore, defendant’s motion to dismiss should not be granted because infertility is

a pregnancy-related medical condition covered by The Pregnancy discrimination Act.

Date: _____________________________ Respectfully submitted,

________________________

Attorney’s nameAttorney’s I.D. no. Atty’s contact info.

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