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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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