ILNews

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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

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  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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