Science Gives Birth to Odd Maternity Lawsuit

BOSTON (CN) - A mother of twins sued her employer for refusing to grant her maternity leave because she did not physically give birth but used a "gestational carrier."

Kara Krill sued Cubist Pharmaceuticals and its senior human resources analyst Caroline Chevalier, in Federal Court.

Krill says Cubist granted her 13 weeks of paid leave after the birth of her first child. But "when Krill gave birth to her first child, she experienced certain pregnancy-related physical complications. In December of 2007, Krill was diagnosed with Asherman's Syndrome, a reproductive disability that substantially and prematurely limits a major life activity, namely, Krill's ability to carry a child to birth," according to the complaint.

Krill says she notified Cubist management, including her direct supervisor, of her disability in 2009. Krill told her supervisor at that time that she and her husband had decided to have another child through a "gestational carrier."

When the gestational carrier became pregnant with Krill's twins, "Krill and her husband obtained a pre-birth order from the state of Pennsylvania that establishes the legal and genetic parentage of Krill's twins without having to institute any adoption proceedings," the complaint states. "The birth certificates of the children identify Krill as the biological mother."

Krill says that a judge signed an order establishing the twins as her biological children, but Cubist insisted she was entitled to just 5 days of paid adoption leave.

Krill says Cubist, a biopharmaceutical company, hired her as a clinical business manager in 2006 and promised her various employment benefits, including 13 weeks of paid maternity leave.

In February this year, before the expected delivery date of the twins in May, Krill says, "Chevalier indicated to Krill that Cubist's leave policies were still under review. Chevalier also sent Krill an e-mail in which she ironically stated that Cubist could potentially be engaged in unlawful discrimination if it permitted Krill - a female employee with a reproductive disability who had arranged for her biological children to be born through a gestational carrier - to take paid maternity leave under Cubist's maternity leave policy."

Krill says she formally complained about Cubist's discriminatory treatment, without success. She says her direct supervisor Michele Guerino subjected her to "verbal harassment and other adverse treatment" and told her she would have perform work tasks for Cubist even if she did take leave for the birth of her children.

"Guerino frequently patronized Krill about her disability and told her pointedly on several different occasions that she should not be entitled to any leave from Cubist for the birth of her children, whether paid or unpaid," Krill claims.

She adds: "In and around the same time that Guerino engaged in persistent verbal harassment of Krill, she also informed Krill that she was changing her sales quota expectations and taking away one of Krill's largest customer accounts and assigning it to another Cubist employee who was not disabled, and not going out on maternity leave."

Guerino is not named as a defendant.

Krill says that after her twins were born, Cubist did not grant her any paid maternity leave, and that though she returned to work, she fears Cubist management will further retaliate against her or fire her.

Krill seeks an injunction and compensatory and punitive damages for employment law violations, breach of contract, breach of good faith and fair dealing and negligent misrepresentation.

She is represented by Charles Rodman with Rodman, Walker & Di Marco of Needham.

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