In 1978, Congress amended Title VII of the Civil Rights Act of 1964 to proscribe discrimination on the basis of pregnancy, (1) a formative step in the political recognition of reproductive capacity as a sex-specific condition in need of legal protection. (2) Passed specifically in response to a 1976 Supreme Court decision declaring that pregnancy-related classifications did not discriminate on the basis of sex, (3) the Pregnancy Discrimination Act (4) (PDA) revolutionized the landscape of employment protections available to pregnant women and women who may become pregnant. But dramatic advances in assisted reproductive technologies have complicated the nature of Title VII pregnancy discrimination claims. (5) Recently, in Hall v. Nalco Co., (6) the Seventh Circuit held that a woman who was allegedly terminated by her employer for undergoing in vitro fertilization (IVF) stated a viable claim under Title VII. In reaching this conclusion, the court in effect adopted a disparate impact theory, correctly reasoning that the employer's conduct disproportionately affected women; however, the court failed to make clear that it was basing its holding not on the gender-specific nature of certain procedures like IVF, but rather on the greater burden women face in undergoing treatment. Although Hall was technically consistent with prior cases involving infertility treatments, an explicit disparate impact analysis would have better signaled to future courts the need to consider gender-specific burdens imposed by employer conduct and would have dispelled any confusion as to the standards parties must meet under Title VII in factually similar situations.
In early 2003, Cheryl Hall, a sales secretary in Nalco's Chicago-area office, informed her supervisor Marv Baldwin that she wished to take a leave of absence from work to undergo IVF. (7) After Baldwin approved the request, Hall took approximately twenty days off to undergo treatment. (8) When she returned to work at the end of April 2003, Hall notified Baldwin that the initial procedure had been unsuccessful and that she planned to repeat the infertility treatment. (9) In July 2003, Hall filed another application for a leave of absence. (10) These requests did not go unnoticed. Baldwin discussed Hall's employment status with Jacqueline Bonin, Nalco's employee-relations manager. (11) According to Bonin's notes from this conversation, Hall had "missed a lot of work due to health," and her job performance was characterized by "absenteeism--infertility treatments." (12)
Some months earlier, Nalco had begun reorganization efforts in an attempt to reduce operating costs. (13) The resulting deliberations led to a decision in mid-June to consolidate Hall and Baldwin's office with another Chicago-area office. (14) At the end of July, Baldwin notified Hall that only Shana Dwyer, the secretary serving in the other office, would be retained after the consolidation. (15) Baldwin told Hall that her termination "was in [her] best interest due to [her] health condition." (16) Dwyer "was a female employee who since 1988 had been incapable of becoming pregnant." (17)
After her termination, Hall filed a timely Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), which declined to pursue further action but provided a Notice of Right to Sue. (18) Hall then filed an action against Nalco alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964. (19) In her complaint, she alleged that she was fired on account of being a "member of a protected class, female with a pregnancy related condition, infertility." (20)
The district court disagreed. In an opinion granting summary judgment for Nalco, Judge Coar ruled that because infertility is a "medical condition that afflicts men and women with equal frequency[,] ... including infertility within the PDA's protection as a 'related medical condition' would result in the anomaly of defining a class that simultaneously includes equal numbers of both sexes and yet is somehow vulnerable to sex discrimination. …