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Saturday, August 23, 2008

Ind. Decisions - More on "Women Battling Infertility Find a Friend in the Court"

Updating this ILB entry from August 20th, about the 7th Circuit's July 16th decision in a case out of Illinois, Cheryl Hall v. Nalco Company, Findlaw columnist Joanna Grossman, a professor of law at Hofstra University has a new column headed "Can a Woman be Fired for Absenteeism Related to Fertility Treatments? A Federal Court of Appeals Says No." Grossman's lengthy article concludes:

Will Cheryl Hall Win on Remand?

While Hall won this round of her case - obtaining the important appellate ruling that fertility-treatment discrimination can be a form of pregnancy discrimination under the PDA - she still has obstacles to surmount. The grant of summary judgment to her employer was reversed, but now she must proceed to trial.

Let's assume for a moment that Hall's employer did just as she alleged - that is, it fired her for absenteeism related to infertility treatments. Is that an unlawful form of discrimination? It depends. If her employer fired her because it bore animosity or hostility against women because of their pregnancy status (including those actual pregnancy, potential pregnancy, or inability to achieve pregnancy), then the termination would certainly constitute unlawful discrimination.

But if her employer did not seek to penalize her because of her potential pregnancy, but simply disliked her absenteeism, what then? Under the PDA, women have no absolute right to accommodations for disability related to pregnancy or childbirth. Her employer could fire her for absenteeism - even if the cause was her fertility treatments - as long as it would have fired a man under comparable circumstances. Hall's ultimate burden will be thus to prove that they singled her out for adverse treatment because of her fertility treatment, or to allege and prove that a strict absenteeism policy has a disparate impact on pregnant or potentially pregnant women.

Regardless of whether Cheryl Hall is able to prove liability at trial, this appellate ruling vindicates an important right of gender equality. It is also an important reminder that the burden of juggling reproduction and work falls almost exclusively on women. The law should do more to accommodate that reality, but the Seventh Circuit's ruling is at least one step in the right direction.

Posted by Marcia Oddi on August 23, 2008 11:56 AM
Posted to Ind. (7th Cir.) Decisions