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Bias Law Applies To Infertility Treatment: Court
A woman stated a claim of sex discrimination when she accused her former employer of firing her for taking time off to undergo in vitro fertilization, a federal appeals court has held.
The 7th U.S. Circuit Court of Appeals on Wednesday revived a lawsuit that alleges that Nalco Co. discriminated again Cheryl Hall in violation of the Pregnancy Discrimination Act.
A three judge panel of the court rejected the notion that Hall would not have a case under the PDA even if she proved her absences due to infertility treatment led Nalco to let her go.
The PDA defines sex discrimination to include discrimination acts undertaken "because of on the basis of pregnancy, childbirth or related medical conditions," the panel said, quoting the statute.
The panel conceded that the "focus" of a sex-discrimination claim brought by an employee "is whether the employer treated the employee differently because of the employee's sex."
The panel also conceded that men as well as women can suffer from infertility.
But the panel noted that Hall claims she was discharged for missing work while undergoing in vitro fertilization.
And surgical impregnation is a procedure "performed only on women on account of their childbirth capacity," the panel said.
"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 Diana S. Sykes wrote for the panel.
The panel said its ruling addressed an issue that the 7th Circuit-and, apparently, other federal appeals courts-had not addressed before.
Joining the opinion were Judges Kenneth F. Ripple and Ilana Diamond Rovner. Cheryl Hall v. Nalco Co., No. 06-3684.
"We think it's a huge victory not only for Cheryl Hall, but also for women throughout the United States who have difficulty getting pregnant and who no longer have to fear retribution from their employers for doing so," Hollander said.
An attorney for Nalco, Mark A Lies II of Seyfarth, Shaw LLP in Chicago, said his client was reviewing the decision.
Nalco provides water- and waste- treatment services as well as chemicals to customers in such institutional or industrial fields as food and beverage, automobile, pharmaceutical and manufacturing.
Hall was working as a sales secretary in Chicago for Nalco, then known as Ondeo Nalco Co., when she took four weeks off in 2003 to undergo in vitro fertilization.
The treatment was unsuccessful, and Hall applied for another leave of absence three months after returning to work.
Several days after asking for time off, Hall was told her sales office was being merged with another in a reorganization that Nalco had begun months earlier.
Hall also was told that, the job of a secretary in the consolidated office was being given to someone else and that her employment was being terminated.
Nalco later claimed it had tried unsuccessfully to find her another job within the company for Hall, while Hall claimed her direct supervisor had told her she was being let go because of her health condition.
In support of her PDA claim, Hall also pointed to notes documenting a conversation between her supervisor and another Nalco manager that included the words "absenteeism-infertility treatments" in the section relating to her job performance.
But U.S. District Judge David H. Coar did not make any rulings on the parties' factual disputes.
Instead, Coar granted summary judgment in favor of Nalco after concluding that the PDA provided relief to an employee only if the medical condition that prompted the alleged discrimination is "unique to women."
The 7th Circuit panel overturned Coar's ruling.
But the panel did note that the PDA does not prevent employers from setting different policies for fertile and infertile workers.
In International Union v. Johnson Controls Inc., 499 U.S. 187 (1991), the U.S. Supreme Court concluded that a workplace rule barring fertile women-but not fertile men-from working jobs involving exposure to lead violated the PDA, the panel said.
Quoting Johnson Controls, the panel said the high court struck down the policy because it classified employees "on the basis of gender and childbearing capacity, rather fertility alone."
"Implicit in this holding is that classifications based on 'fertility alone' - and by like implication, infertility alone'-and by like implication, infertility alone-are not prohibited by the PDA, which reaches only gender- specific classifications," Sykes wrote.
But the panel said Coar erred by focusing too much on the issue of "infertility alone."
"As Johnson Controls illustrates, even where [in]fertility is at issue, the employer conduct complained of must actually be gender neutral to pass muster," Sykes wrote.
The panel said the policy challenged in Johnson controls violated this neutrality requirement " because its justification was the effect of lead exposure on fertility - an effect implicating both women and men-yet it barred only fertile women from employment."
The conduct allegedly taken by Nalco "suffers from the same defect," the panel said.
"Employees terminated for taking time off to undergo IVF-just like those terminated for taking time off to give birth or receive other pregnancy -related care - will always be women," Sykes wrote.