Hall v. Nalco Co.

Decision Date16 July 2008
Docket NumberNo. 06-3684.,06-3684.
Citation534 F.3d 644
PartiesCheryl HALL, Plaintiff-Appellant, v. NALCO COMPANY, formerly known as Ondeo Nalco Company, a Delaware corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Eugene K. Hollander (argued), Chicago, IL, for Plaintiff-Appellant.

Mark A. Lies, II (argued), Seyfarth Shaw, Chicago, IL, for Defendant-Appellee.

Before RIPPLE, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Cheryl Hall maintains she was fired by Nalco Company for taking time off from work to undergo in vitro fertilization after being diagnosed with infertility. She filed this suit under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act ("PDA"), alleging her termination constituted discrimination on the basis of sex. Without reaching the merits of her claim, the district court granted summary judgment for Nalco on the ground that Hall could not prove sex discrimination because infertility is a gender-neutral condition.

We reverse. The focus of any Title VII sex-discrimination claim is whether the employer treated the employee differently because of the employee's sex. The PDA amended Title VII to provide that discrimination "because of" sex includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). Although infertility affects both men and women, Hall claims she was terminated for undergoing a medical procedure — a particular form of surgical impregnation — performed only on women on account of their childbearing capacity. Because adverse employment actions taken on account of childbearing capacity affect only women, Hall has stated a cognizable sex-discrimination claim under the language of the PDA.

I. Background

Hall was hired by Nalco in 1997 and in April 2000 took on the role of sales secretary. In that position Hall reported to Marv Baldwin, a district sales manager in the Chicago-area office in which she was employed. In March 2003 Hall requested a leave of absence to undergo in vitro fertilization ("IVF"). IVF is an assisted reproductive technology that involves administration of fertility drugs to the woman, surgical extraction of her eggs, fertilization in a laboratory, and surgical implantation of the resulting embryos into the woman's womb. See The Merck Manual of Medical Information 1418-19 (Mark H. Beers, MD, et al. eds., 2d home ed.2003) (describing IVF procedure); Mayo Clinic Family Health Book 1069-70 (Scott C. Litin, MD, ed., 3d ed.2003) (same). Each IVF treatment takes weeks to complete, and multiple treatments are sometimes needed to achieve a successful pregnancy. Mayo Clinic Family Health Book, supra at 1069-70. Baldwin approved Hall's leave from March 24 to April 21. After Hall returned to work, she informed Baldwin she intended to undergo IVF again because the first procedure had been unsuccessful. On or around July 21, she filed for another leave of absence to begin August 18.

In the meantime, in January 2003 Nalco began a reorganization that ultimately led to a decision to consolidate Hall and Baldwin's sales office with another Chicago-area sales office. As part of this consolidation, Nalco decided to keep only one of the two sales secretaries serving those offices. At the end of July 2003, Baldwin told Hall of the consolidation and informed her that only Shana Dwyer, the secretary from the other office, would be retained. Baldwin told Hall her termination "was in [her] best interest due to [her] health condition." Prior to informing Hall of her termination, Baldwin discussed the matter with Jacqueline Bonin, Nalco's employee-relations manager. Bonin documented this conversation; her notes reflect that Hall had "missed a lot of work due to health," and more specifically, in a section relating to Hall's job performance, cite "absenteeism — infertility treatments." Dwyer, the secretary who was retained, was a female employee who since 1988 had been incapable of becoming pregnant.

After her termination Hall filed a timely discrimination charge with the Equal Employment Opportunity Commission and then filed this action against Nalco alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2. Specifically, she alleged her termination violated the Pregnancy Discrimination Act, which amended Title VII to state that discrimination "because of sex" includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). Hall alleged she was fired on account of being "a member of a protected class, female with a pregnancy related condition, infertility." Without addressing the merits of Hall's claim, the district court granted summary judgment for Nalco on the ground that infertile women are not a protected class under the PDA because infertility is a gender-neutral condition. Hall appealed.

II. Discussion

We review de novo a district court's grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir.2006). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The district court did not address whether the case presented a material factual dispute; instead, the court concluded Hall's allegations did not amount to discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." We are presented, then, with a threshold legal question of whether Hall has stated a cognizable Title VII claim.

Whether allegations of the type Hall has made state a claim for relief under Title VII is an issue of first impression in this circuit; we are also unaware that any other circuit has addressed the precise question presented here. Title VII makes it unlawful for an employer to discharge or otherwise discriminate against an employee in the terms and conditions of employment "because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(2). In 1978 the Pregnancy Discrimination Act, Pub.L. No. 95-555, 92 Stat.2076 (1978), amended Title VII to include the following definitional provision:

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise.

42 U.S.C. § 2000e(k). The PDA was enacted to overrule the Supreme Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), which had held that excluding pregnancy from a list of nonoccupational disabilities covered by an employer's disability benefits plan did not amount to discrimination on the basis of sex. See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 676-78, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983).

The PDA created no new rights or remedies, but clarified the scope of Title VII by recognizing certain inherently gender-specific characteristics that may not form the basis for disparate treatment of employees. Id. at 678-79, 103 S.Ct. 2622. "[T]he simple test" in any Title VII sex-discrimination claim is whether the employer action in question treats an employee "in a manner which but for that person's sex would be different." City of L.A., Dep't of Water & Power v. Manhart, 435 U.S. 702, 711, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). The enactment of the PDA did not change this basic approach. Newport News, 462 U.S. at 683-85, 103 S.Ct. 2622. The PDA "made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex." Id. at 684, 103 S.Ct. 2622. The same is true for disparate treatment based on childbirth and medical conditions related to pregnancy or childbirth. See 42 U.S.C. § 2000e(k) (discrimination "because of sex" includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions").

The district court concluded that Hall's allegations do not state a Title VII claim because infertility is a gender-neutral condition entitled to no protection under the language of the PDA. In reaching this conclusion, the court relied primarily on two cases from other circuits holding that the PDA does not require employer insurance policies to cover infertility treatment so long as both male and female treatments are excluded. See Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir.2003) ("Because reproductive capacity is common to both men and women, we do not read the PDA as introducing a completely new classification of prohibited discrimination based solely on reproductive capacity."); Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 680 (8th Cir.1996) ("[B]ecause the policy of denying insurance benefits for treatment of fertility problems applies to both female and male workers and thus is gender-neutral," it does not violate the PDA.).

Both Saks and Krauel distinguished the Supreme Court's decision in International Union v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991), an important case concerning the scope and proper interpretation of the PDA. At issue in Johnson Controls was an employer policy that barred all fertile women from jobs involving lead exposure because of its potentially damaging effect on fertility and the fetus. The Court held the...

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