IVF AND VALUING THE DAMAGES WHEN AGENCY ERRORS DENY COUPLE A CHILD
The simple story here is that EEOC has reviewed and upheld its 2018 conclusion that it violates the law protecting employees with disabilities for the feds to have offered health insurance plans that denied coverage for certain artificial insemination and IVF procedures. But the much more interesting holding is how EEOC concluded how much money the feds owe a husband and wife couple of feds because, “The Agency’s discriminatory conduct had the additional effect of prematurely and permanently ending Complainants’ twelve-year pursuit of wanted parenthood to a biological child.” In short, it wrote, “we believe one acceptable and fair method to discern how much Complainants valued becoming parents is to look at how much they were willing to pay to become parents to adopted children in 2002.”
Given that the employees spent $50,000 in 2002 trying to conceive, EEOC awarded them $72,000 in today’s dollars after concluding that the agency was responsible for 78% of the reasons why they did not conceive biological children.
It then turned to assessing their emotional pain and suffering caused by the Agency’s discriminatory actions, e.g., their inability to afford IVF during the wife’s prime child-bearing years. It wrote, “Complainants may recover compensatory damages for the emotional harm from losing the time-sensitive opportunity to try to have a biological child.”
The decision reports the following evidence related to that.
Complainants diverted all their discretionary funds, and then some, to ART treatments. Complainants depleted their savings, increased their debt, and asked their parents for money. Complainants did not go on vacations, eat out, buy new clothes, or even buy new-to-them used cars. Complainants received a hand-me-down couch from the wife’s grandmother, which the wife sat on as a toddler. The husband worried about the house temperature, how much toothpaste to use, and “how long I could use a razor before the cutting on my face became unbearable.” SROI at 31. To save money, Complainants purchased some medications from Mexico and decided the husband would inject the wife with medications at home. The husband worried he would hit a vein or inject an air bubble into his wife’s blood vessels and obsessed over the next time he would have to give her one of the painful injections. The wife stated that her husband injecting her at home caused a strain on their relationship. Complainants bought cheap, unhealthy food to save money, which resulted in the husband gaining weight. However, the husband could not afford to buy new clothes that fit him, so he kept wearing his old, ill-fitting clothes. He also wore shoes with holes in them.
The husband stated that his friends made fun of him for his ill-fitting clothes because he did not explain the full extent of what he and the wife were going through. Complainants felt unsupported by others who meant well but told them they would get pregnant if they just “relaxed.” Complainants experienced stigma as a result of being childless, particularly involuntarily childless. The husband described telling his mother one time that he and his wife were going to a nursery, which made his mother very excited. The husband had to clarify that he meant a plant nursery and described watching her deflate. When the wife became pregnant in 2000, Complainants did not tell anyone, even their family, because they did not want to get anyone’s hopes up given the risks associated with the early stages of pregnancy.
Moreover, the duration of the emotional harm was not “a few years” as asserted by the Agency’s final decision. The husband stated that, “[t]o this day,” he is neurotic about spending money and said that his son talks about “how we live like beggars.” SROI at 31. According to the husband, he continually fears that they will unexpectedly need money, and they are trying to catch up with saving for retirement, which feels impossible. The wife stated that their financial struggles continued in the years after ART treatments because they had to pay back loans that were necessary to pay for expenses not covered by insurance. The wife observed that some of their friends are starting to retire, while Complainants need to continue to save for retirement.
Based on that, EEOC increased its $72,000 award by $150,000 for the emotional harm experienced by the wife and an increase of $145,000 for the emotional harm suffered by the husband. The total was $477,000.
It is a fascinating case and essential reading for any union reps that find themselves dealing with a similar discrimination claim against an agency. See Theo B. and Cathie K., v. Rob Shriver, Act’g Director, OPM, EEOC Nos. 2023001049, 2023001050 (2024)
