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7th Circuit won't rehear in vitro case

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The full 7th Circuit Court of Appeals won't rehear a case of first impression involving an Indiana woman's claim that she was wrongfully fired for taking time off for in vitro fertilization, and attorneys haven't decided whether to seek further review by the U.S. Supreme Court.

In the first of its kind for any federal appellate court, the 7th Circuit Court of Appeals ruled in favor of the woman July 16 in Cheryl Hall v. Nalco Co., No. 06-3684, a case that could have implications on women workers across the country. The appellate panel reversed a ruling from U.S. District Judge David Coar in the Northern District of Illinois' Eastern Division, which granted summary judgment for the employer on the ground that Hall, in someone seeking that surgical impregnation, didn't fall within a protected class and couldn't prove sex discrimination because infertility is a gender-neutral condition.

The 7th Circuit found the District judge's emphasis on "infertility alone" and application of caselaw was misplaced based on the facts of this case.

A docket entry shows that the full court declined Aug. 15 to grant a rehearing en banc, noting that no active judge has requested a vote on that and Judges Diane Sykes, Kenneth Ripple, and Ilana Rover on the original panel denied that vote. Judge Richard Posner did not vote, the docket shows.

Nalco's attorney on the appeal, Mark Lies II in Chicago, declined to comment on the case or ruling and said his firm has a policy against that.

But Charlie Pajor, Nalco's senior manager of external communications, wrote in an e-mail to Indiana Lawyer Thursday, "We are still considering all our legal options, including further appeals, but have made no final decision. Because this issue is still in litigation, we cannot comment on the case itself."

Court rules give Nalco 90 days from the latest judgment - until mid-November - to file a petition for writ of certiorari.

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  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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