Like many other women, Cheryl Hall was afflicted with infertility. After taking one leave from work, and requesting a second, to undergo IVF, she was fired. Does Title VII prohibit an employer from firing an employee under these circumstances? In a recent ruling, Hall v. Nalco, the U.S. Court of Appeals for the Seventh Circuit said yes.

CONFLICTS BETWEEN REPRODUCTION (INCLUDING INFERTILITY TREATMENT) AND WORK

As many previous chapters have shown, pregnant women sometimes face challenges at work, whether posed by environmental conditions, like chemicals, radiation, or infectious disease; by physical movements that can be difficult to perform, like standing for long periods of time, stooping over, climbing stairs or ladders, or lifting heavy objects; or, finally, by job conditions, like irregular hours, shift work, or psychological stress. For some women, the potential conflicts between reproduction and work start even earlier – while they attempt to become pregnant. For those who struggle with infertility, balancing work with the often invasive and time-consuming procedures used to try and achieve pregnancy can be a significant challenge. For instance, IVF, an increasingly common procedure, requires a difficult series of procedures and injections that will require most, if not all, women to take time off from work. Many will also suffer side effects from IVF drugs or the procedures that may interfere with a woman's full working capacity.

WHAT PROTECTION DO WOMEN HAVE WHEN REPRODUCTION CONFLICTS WITH WORK?

The PDA is the primary source of protection against discrimination on the basis of reproductive capacity. But its application to infertility treatments, as demonstrated in Chapter 41, has been uncertain. The question in Hall, a matter of first impression in the Seventh Circuit, was this: Does infertility qualify as a “related medical condition” because it relates to women's intention or potential to become pregnant?

Cheryl Hall, the plaintiff in the recent case that came before the Seventh Circuit, did require leave from work while undergoing in vitro fertilization. Although her case had not yet reached a factfinder when it was appealed, the parties agreed that Hall took a monthlong leave of absence in March 2003. She did not become pregnant through that round of IVF and requested a second leave of absence in August 2003.