Summary
A closely watched challenge to fertility benefit design ends in dismissal. A lesbian employee of Wellstar Health System sued under Title VII because the medical plan makes women establish infertility either through months of procreative intercourse, which costs nothing, or through rounds of artificial insemination that she must pay for and that do not result in pregnancy, the only path open to her. A magistrate judge had recommended letting the claims proceed under Bostock, the Supreme Court decision holding that firing a worker for being gay or transgender is discrimination because of sex. Judge Brown rejected that recommendation and dismissed the case. In his reading, Bostock requires changing one thing only, the plaintiff's sex, and a similarly situated male employee would not receive the benefit either, because the plan covers only female infertility. The group actually disadvantaged, the judge reasoned, is everyone unable to conceive through intercourse, which includes men and women of all orientations and is not a protected class. The court declined to follow contrary decisions from federal courts in California and Illinois, so the split over fertility benefit design deepens. The class claims were dismissed without prejudice.