7th Circuit: Woman Fired After In Vitro Treatments Has Valid Cause for Suit

The Seventh Circuit Court of Appeals here in Chicago is known for having an aversion to the typical "bright line" rulings issued by other circuits (and, often, their bosses in D.C.). The judges say they like to think the cases through, instead of follow some "easy-to-follow" method spelled out in a previous case that just ends up confusing things*.

Whether that's 100% true is debatable. But in an opinion released this week, they certainly followed that tack, and in the process issued a ruling that did a great job defined the rights under the Pregnancy Discrimination Act.

The opinion in Hall v. Nalco, written by Judge Sykes, holds that in-vitro fertilization treatments are covered under the Pregnancy Discrimination Act. Which means, basically, that employers can't treat you differently (or fire you) for getting IVF treatments. That probably doesn't seem revolutionary, but it suprised me. Here's why:

The plaintiff, a secretary who was fired when her office was merged with another, claimed that her firing was discrimination because it was based on her "absenteeism" related to her in-vitro treatments. The plaintiff argued that infertile women are protected under the Pregnancy Discrimination Act, which extends discrimination protection based on sex (the gender kind, not the "doin' it" kind) to include pregnancy-related conditions.

Most people (including me) heard that argument and stopped paying attention, because the Supreme Court had already ruled that infertility is gender-neutral (i.e. the same for boys and girls - like a Slinky), which means it's not related to "sex" and not protected. So, done deal. Plaintiff loses. That's why the District Court threw the case out in the first place.

Well, not so fast. You can't just say "infertility isn't protected" and close the book. The Plaintiff's "absenteeism" was related to IVF treatments. Show me a guy getting IVF treatments. It's impossible - we don't have the parts. So who cares if there's a "rule" about infertility? This is about pregnancy.

Plaintiff gets to sue.

Agree or not, you have to love it when the judges (and their clerks) really pay attention to the case law. It doesn't always happen. In this case, the Plaintiff's complaint didn't even separate IVF from "infertility" (see note 3 of the opinion). But because the court saw a distinction, we have an opinion that will do so much more for understanding what the PDA covers than any "bright line" rule ever would.

* See Paul W. Mollica, "Employment Discrimination Cases in the 7th Circuit", 1 Emp. Rights & Emp. Policy J. 63, 100 (1997). Yeah. Sometimes I cite things. So?