In its recent decision Hall v. Nalco, the Seventh Circuit became the first Federal Circuit Court of Appeals to recognize a Title VII claim arising from adverse employment action following from a woman’s pursuit of in vitro fertilization, a type of infertility treatment. The Seventh Circuit’s decision creates a possible conflict with the Eighth and Second Circuits, which have both refused to recognize a cognizable Title VII claim where an employer excludes infertility treatments from insurance benefits plans. Furthermore, the Seventh Circuit’s reasoning articulates a murky distinction between childbearing capacity and fertility—although discrimination based on childbearing capacity violates Title VII as amended by the Pregnancy Discrimination Act, discrimination based on fertility does not. Nevertheless, the Seventh Circuit correctly determined that adverse employment action based on an employee’s pursuit of infertility treatments is gender discrimination under the Pregnancy Discrimination Act.
Teresa A. Minnich,
Welcome to the Family: A New Class of Cognizable Claims Under the Pregnancy Discrimination Act,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol4/iss1/6