Articles

Dyer woman's in vitro court case first of its kind

By Joe Carlson - jcarlson@nwitimes.com

219.933.3364 | Friday, July 18, 2008

CHICAGO | In a first-of-its-kind legal case that could have implications for women across the nation, federal judges have ruled that a Dyer woman should not have been fired for taking time off of work to undergo in vitro fertilization treatments.

The 7th Circuit Court of Appeals ruled Cheryl Hall was entitled to protection from gender discrimination because only women can become pregnant, and therefore firing someone for trying to become pregnant is a form of discrimination against women.

"It's not only a huge victory for Cheryl Hall but for women who are having trouble becoming pregnant," said Hall's attorney, Eugene Hollander, of Chicago. "They don't have to worry about retribution for taking time off of work to try to get pregnant."

It's the first case at the federal appeals level to decide the question of whether amendments to the Civil Rights Act outlawing sex discrimination apply to women with infertility problems who are trying to become pregnant.

In 2006, U.S. District Judge David Coar sided with Hall's suburban Chicago employer and said seeking infertility treatment was not grounds for sex discrimination because infertility is a condition that applies equally to men and women.

"The fact that (Hall) happens to be a woman in the present case does not qualify her for protection under Title VII" of the Civil Rights Act, Coar wrote.

On Wednesday, the appeals judges tossed out Coar's reasoning.

"Hall was terminated not for the gender-neutral condition of infertility but rather for the gender-specific quality of childbearing capacity," U.S. Appeals Court Judge Diane Sykes wrote.

Although the opinion set a precedent that Hollander said will be considered in similar cases across the country, it did not definitively resolve Hall's lawsuit.

Hall had been a sales secretary in the manufacturing plant of a Naperville, Ill., water treatment and chemical company, Nalco, since 1997.

She was granted leave for about four weeks to undergo in vitro fertilization treatments in early 2004. But when a pregnancy did not result, she applied for a second leave of absence in the fall.

In the meantime, company officials said they decided to combine two offices and got rid of Hall's job in the process.

Hall's lawsuit alleges the reorganization was only a pretext for her firing. She says her personnel file included references to her "absenteeism -- infertility treatments" on performance reviews.

With Coar's decision out of the way, Hall still must convince a jury that her infertility treatments were the true reason for her firing, which Nalco denies.

Nalco attorney Mark Lies II, of Chicago, could not be reached for comment Thursday regarding the case.