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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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