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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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