Egg Freezing as an Employee Benefit?
Apple recently announced that, like Facebook, it would be offering up to $20,000 for female employees to freeze their eggs, and the announcement has been garnering significant attention from supporters and detractors alike.
Many commentators have touted this as a huge boon for equality in the workplace, allowing women to focus on their careers as men can, without the fear that if they put off having babies until they actually want to, they may no longer be able to.
Others have voiced concerns that the availability of this coverage will put pressure on women to put off getting pregnant even if they really want to in order to prove to their employer that they are truly invested in their careers and their companies. Essentially, the concern is that this “perk” will create a two-tiered system that differentiates between women who do take advantage of the egg freezing option and those who do not.
No Canadian employers have yet followed suit and it will be interesting to see whether they do, given the many differences in Canadian and American law surrounding reproductive issues. For example, in Canada “commercial surrogacy” – paying a woman to act as a surrogate – is prohibited by the Assisted Human Reproduction Act, but in the United States, this practice is permissible.
The big issue for Canadian employers will be whether the offering of such an employment benefit constitutes discrimination under various human rights legislation. The Ontario Human Rights Code for example provides that, “every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.”
In offering the benefit alone, it is unlikely that female employees could bring a successful claim for discrimination against an employer. If, however, they can demonstrate that there was pressure upon women in a particular workplace to freeze their eggs or that women who opted not to freeze their eggs were treated differently than those who opted to, the employer will almost certainly be running afoul of human rights legislation. If the employer has knowledge of which women are making use of the benefit and which are not, this scenario becomes even more problematic and raises additional privacy issues.
Another issue this benefit raises, however, is whether offering such a service to women discriminates against men. Men may not face the same fertility issues in their late 30s and 40s that women do, and there isn’t necessarily the same time pressure upon men to have babies, but offering a $20,000 benefit to one group of employees and not others based on sex is treading into dangerous territory. In Buffett v. Canadian Forces, 2007 FC 1061, a male Canadian Forces member, Mr. Buffett, brought a discrimination claim against the Canadian Forces for refusing to cover intra-cytoplasmic sperm injection (ICSI), a procedure that isolates normal looking active sperm to be injected directly into an egg – a procedure that assists with male infertility – while covering in vitro fertilization (IVF), a procedure that assists with female infertility.
The Federal Court, on judicial review of the Canadian Human Rights Tribunal’s decision, held that Mr. Buffett had been discriminated against within the meaning of Section 7 of the Canadian Human Rights Act and that the Canadian Forces Health Care Plan should cover the cost of the ICSC aspect of the procedure for its male members, though not the IVF portion which was generally covered by provincial health care plans.
In light of this, if an employer offers egg freezing for female employees, but refuses to cover similar procedures for male employees (for example sperm freezing, as research has shown that sperm from older men are associated with more genetic abnormalities), it might breach human rights legislation in Canada.
It will certainly be interesting to see how this issue plays out, but the one common thread that appears to unite both proponents and critics of the egg freezing employment benefit is that workplaces need to become more family-friendly for both men and women alike. A possible solution for those employers who can afford it? Perhaps providing a health benefit amount towards reproductive treatments for both male and female employees. After all, fertility affects men and women equally.