COURTS’ STRUGGLE WITH INFERTILITY: THE IMPACT OF Hall v. Nalco ON INFERTILITY-RELATED EMPLOYMENT DISCRIMINATION

KERRY VAN DER BURCH

This Note focuses on a recent Seventh Circuit case of first impression, Hall v. Nalco, which held that Title VII prohibits an employer from firing an employee for absenteeism related to infertility treatments.  Because Hall is the first circuit court decision to rule that fertility-treatment discrimination can be a form of sex discrimination under Title VII, it represents a victory for infertile employees suffering from workplace discrimination.

Yet Hall tells a tale of missed opportunities.  This Note highlights how both the Seventh Circuit and the plaintiff, Cheryl Hall, missed opportunities to expand legal protection for employees undergoing infertility treatments.  First, the Seventh Circuit missed an opportunity to create clear precedent for future litigants in similar situations.  The opinion employs an implied—not express—disparate impact analysis.  This lack of clarity further complicates infertility-related discrimination precedent under Title VII.  Second, Cheryl Hall (and her lawyers) missed an opportunity to seek redress under two other federal employment statutes: the Americans with Disabilities Act and the Family and Medical Leave Act.