In vitro firing case one of first impression

Michael W. Hoskins
January 1, 2008
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In the first of its kinds for any federal appellate court, the 7th Circuit Court of Appeals has ruled in favor of an Indiana woman who claimed she was wrongly fired for taking time off work to have in vitro fertilization.

The 7th Circuit issued its decision on the Illinois case Wednesday in Cheryl Hall v. Nalco Co., No. 06-3684, a case that could have implications for 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, as someone seeking surgical impregnation, didn't fall within a protected class and couldn't prove sex discrimination because infertility, the judge ruled, is a gender-neutral condition.

Hall worked as a sales secretary in the Chicago-area manufacturing office of the water treatment and chemical company, and in March 2003 requested a leave of absence for IVF after being diagnosed with infertility. She obtained about four weeks off but the treatment didn't work, and she applied for a second leave in the fall. The company in the meantime decided to merge two offices and eliminate her job, citing health-related absenteeism. The other employee retained was a female who since 1988 had also been unable to bear children.

In response, Hall filed a charge with the Equal Employment Opportunity Commission and then filed a federal suit claiming sex discrimination in violation of Title VII of the Civil Rights Act of 1964, and specifically that her firing violated the Pregnancy Discrimination Act that includes discrimination "because of or based on the basis of pregnancy, childbirth, or related medical conditions."

But 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.

"The focus of any Title VII sex-discrimination claim is whether the employer treated the employee differently because of the employee's sex," Judge Diane Sykes wrote. "Although infertility affects both men and women, Hall claims she was terminated for undergoing a medical procedure ... performed only on women on account of their childbearing capacity. Because adverse employment actions taken on account of childbearing capacity affect only women, Hall has stated a cognizable sex-discrimination claim under the language of the PDA."

Judge Sykes noted that Hall's Title VII claim is an issue of first impression for the 7th Circuit, and the court isn't aware of any other Circuit Court addressing that precise question. The court also found that Hall's claim of pretext in her firing was a triable issue because she was told and management notes detail her health-related absenteeism as a factor in her firing. That is an issue for a jury to decide, the court determined.

Hall's attorney, Eugene Hollander in Chicago, said he was pleased for both women across the country and his client, who he said has been able to have children through IVF since this case began.

"She's waited many years for her day in court, and now it looks like it will happen," he said. "This is a very big landmark case and has a lot of importance for women across the country. Now, women employees can undergo non-traditional ways of getting pregnant without having to worry about retribution for taking time off work."

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

Hollander told Indiana Lawyer this morning that he didn't yet know if Nalco's counsel would ask the Supreme Court of the United States to review the case.

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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.