No discrimination protection before fertility treatment begins
In a recent case the Supreme Court has ruled that protection against dismissal connected with pregnancy under the Danish Equal Treatment Act does not extend to those who are undergoing the preparatory stages prior to fertility treatment.
The Danish Equal Treatment Act prohibits employers from taking into account an employee's pregnancy in deciding to dismiss them. In a case involving the dismissal of a pregnant employee the burden is on an employer to prove that their decision to dismiss was not influenced by the pregnancy.
Women who are going through fertility treatment are also covered by the Danish Equal Treatment Act. But what about women who are not yet on an actual treatment but only going through preparatory examinations prior to possible fertility treatment?
The Danish Supreme Court gave a ruling on this matter on March 2012. The background to the case was that, as a result of lack of work, an employer chose to dismiss six employees, including an employee who had had some sick leave days during the previous three years. That employee was, at the time of termination, going through preparatory examinations for fertility treatment. She argued that she was, therefore, protected by the Danish Equal Treatment Act.
The Supreme Court rejected the employee's claim. The court emphasized that, according to previous practice, the protection of the Danish Equal Treatment Act covers employees who have been trying to become pregnant through fertility treatment. However, the court found that there was no support in either the legislation or the case law to extend protection to cover the preparatory examinations for fertility treatment. Consequently, the termination of the employment was not a breach of the Danish Equal Treatment Act. In any event, the court found that the employer succeeded in proving that the dismissal of the employee was due to operational circumstances.
The judgment confirms that protection under the Danish Equal Treatment Act only applies when the actual fertility treatment has begun; employees enjoy no special protection against dismissal in connection with the initial examinations for fertility treatment.