Gay Couple Files Class Action Lawsuit Against NYC for Denying IVF Benefits to Gay Male Employees & Their Partners (Briskin & Maggipinto v. City of New York)

Employment Discrimination
Written By Peter Romer-Friedman

On May 9, 2024, a gay male couple from Brooklyn filed an historic class action lawsuit against the City of New York (City) alleging that the City violates the civil and constitutional rights of thousands of gay men by categorically denying valuable in-vitro fertilization (IVF) benefits to gay male employees of the City and their partners, while providing IVF benefits to female employees and their partners and to male employees and their female partners.

The complaint, which also names Mayor Eric Adams and former Mayor Bill de Blasio as defendants, is the first class action lawsuit to argue that employers must provide gay male employees with IVF benefits if they offer IVF benefits to other employees. The case could require employers nationwide to extend IVF benefits to gay male employees. The complaint claims that the City’s sex and sexual orientation discrimination against gay men violates Title VII of the Civil Rights Act, the New York State and City Human Rights Laws, and the U.S. and New York Constitutions.

The plaintiffs and proposed class are represented by Peter Romer-Friedman, the founder of Peter Romer-Friedman Law PLLC, a civil rights and class action law firm, and former labor counsel to Senator Edward M. Kennedy, and David Lopez, who served as General Counsel of the Equal Employment Opportunity Commission (EEOC) from 2010 to 2016, and currently serves as a professor at Rutgers Law School and Of Counsel to Peter Romer-Friedman Law PLLC. Professor Lopez was one of the architects of the EEOC’s successful campaign to convince the U.S. Supreme Court to recognize that LGBTQ workers are protected by Title VII.

The City of New York’s healthcare plan covers at least three rounds of IVF for single female employees, female employees in different- and same-sex relationships and their partners, and male employees in different-sex relationships and their female partners. But, as the complaint alleges, the City’s health care plan categorically excludes gay men from receiving IVF benefits based on an outdated definition of “infertility.” As a result, the City’s healthcare plan has denied gay men equal treatment and made it much harder for hundreds and possibly thousands of gay male employees and their partners to have biological children. Although gay men cannot conceive a biological child without IVF, the cost of IVF—which is ordinarily tens of thousands of dollars per cycle—prevents most gay male couples from growing their families biologically.

In 2016, Corey Briskin and Nicholas Maggipinto married and hoped to begin growing their family in 2017. Like many other gay male couples, Corey and Nicholas wanted to conceive a child biologically with the assistance of an egg donor, IVF, and a surrogate. But the high cost of IVF services and the City’s refusal to offer Corey and Nicholas the same IVF benefits that the City offers to other employees who are not gay males has forced them to delay growing their family for years. In 2021, Mr. Briskin, then an Assistant District Attorney in Manhattan, asked the de Blasio Administration to provide him, his husband Nicholas, and other gay male employees the same IVF benefits the City offers to female employees and to male employees with female partners. But the City refused. And even after Corey and Nicholas filed a discrimination charge with the EEOC in 2022, the City and Mayor Adams continue to defend the City’s policy.

Although Mayor Adams has defended the City’s discriminatory policy, other City leaders have spoken out about the need for the City to provide IVF benefits to gay men. Earlier this year, several NYC Council Members, including the Chair of the Health Committee, introduced a bill to provide IVF benefits to employees whether or not they can satisfy the City’s discriminatory definition of “infertility” that prevents gay men from qualifying for IVF benefits.

During the EEOC’s investigation of their charge, Corey and Nicholas learned that the City offers IVF benefits to other employees who are identically situated to them, underscoring how discriminatory the City’s policy is. For example, according to the EEOC’s investigation, when a male employee and his female partner are both covered by the City’s healthcare plan and the female partner cannot produce viable eggs, the City will cover the cost of fertilizing the eggs obtained by the couple from a female donor using the male employee’s sperm; and likewise, when a male employee’s female partner is not covered by the City’s healthcare plan but is capable of producing viable eggs, the City will cover the cost of fertilizing the female partner’s eggs using the male employee’s sperm if the couple uses their own resources to retrieve eggs from the female partner. In contrast, when a gay male employee like Mr. Briskin obtains eggs from a female donor because his partner cannot produce viable eggs, the City’s healthcare plan offers Mr. Briskin no IVF benefits and will not cover the cost of fertilizing the donated eggs using his sperm.

Although the City has refused to give gay men IVF benefits by applying an outdated definition of “infertility” that categorically prevents gay men from being considered infertile, in October 2023 the American Society of Reproductive Medicine (ASRM) amended its definition of infertility in to make it more inclusive to the LGBTQ community—recognizing that a person’s need for donor gametes or donor embryos to achieve a successful pregnancy constitutes infertility. Consistent this this more inclusive understanding of “infertility,” in March 2024 the Biden Administration announced changes to federal health guidelines so that LGBTQ servicemembers and veterans can receive IVF benefits were previously denied to LGBTQ people.

Peter Romer-Friedman, who represents the Plaintiffs, said “Gay men are entitled to equal treatment in the workplace, including when employers like the City of New York offer IVF benefits to their employees. The City of New York is treating gay men like second-class citizens when it comes to IVF benefits. While we’re prepared to fight as long as it takes to win equal treatment for gay male employees of the City of New York, we hope that the City’s leaders will work with us now to reform this discriminatory policy and ensure that all City employees and their partners can access IVF.”

David Lopez, the former General Counsel of the EEOC, said “This case will vindicate the meaningful opportunity for everyone to start a family, regardless of sexual orientation.”

The case is known as Corey Briskin et al. v. City of New York et al., No. 24 Civ. 3557 (S.D.N.Y.), and is pending in the U.S. District Court for the Southern District of New York, the federal trial court based in Manhattan.  Case Documents

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Peter Romer-Friedman
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