Labor Pains: The Seventh Circuit Distorts the PDA to Bar Discrimination on In Vitro Fertilization

Justin Kerner, Villanova University School of Law

Abstract

This note focuses on Hall v. Nalco Co., a recent case of first impression in the Seventh Circuit Federal Court of Appeals. In Hall, the Seventh Circuit found that, under the PDA, it is discriminatory for an employer to terminate an employee based on the employee’s requests for time off to pursue in vitro fertilization treatments. Thus, because Hall presented sufficient facts for a jury to consider, the court reversed a grant of summary judgment for Nalco and remanded the case to the district court for review.

While reversal of summary judgment was appropriate, the court engaged in faulty reasoning. Discrimination charges and claims filed under the PDA fall under the umbrella of gender-specific discrimination. Accordingly, Hall’s claim must fail because, as the Supreme Court and Federal Courts of Appeal have noted, infertility is a gender-neutral condition. Without an additional showing of sex discrimination, Hall’s claim does not fall under the umbrella of Title VII as amended by the PDA.