The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act 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).

Cheryl Hall worked as a sales secretary in a Chicago-area office for Nalco. In March 2003, she sought a leave of absence to undergo in vitro fertilization ("IVF"). Leave was granted, but the procedure was unsuccessful. On or around July 21, 2003 she asked for another leave of absence to begin August 18, 2003.

In January 2003, Nalco began a reorganization process that consolidated two area sales offices into one. This process ultimately led to the reduction of one of two sales secretaries. Management decided to eliminate Hall's employment, and retain the other sales secretary. Hall's supervisor told Hall that her termination "was in [her] best interest due to [her] health condition." Prior to informing Hall of her termination, Hall's supervisor discussed the matter with Nalco's employee-relations manager, who documented the conversation. These written notes memorialized how Hall had "missed a lot of work due to health," and with regard to performance the notes cited "absenteeism -- infertility treatments."

Hall aggressively pursued legal action against Nalco. A federal lawsuit eventually commenced whereby Nalco was named as the defendant. Despite Nalco's acknowledgement of Hall's health issues in the selection and termination process, the federal district court granted summary judgment for Nalco, thereby dismissing Hall's lawsuit. The federal district court held that infertile women are not a protected class under the Pregnancy Discrimination Act because infertility is a gender-neutral condition not protected under the law.

On appeal to the 7^th Circuit Court of Appeals, the appellate court noted that 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--ultimately involving a surgical impregnation procedure.

The 7^th Circuit went on to hold that Hall's allegations presented a cognizable claim of pregnancy discrimination not to be dismissed but to be resolved through a trial. The 7^th Circuit found that "employees terminated for taking time off to undergo IVF, just like those terminated for taking time off to give birth or receive other pregnancy-related care, will always be women." Therefore, contrary to the district court's conclusion, "Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity."

So, what should employers take from this decision? In an aging workforce where more and more women are delaying pregnancy until their later years, in vitro fertilization should continue to rise. And, although the traditional form of pregnancy discrimination will likely continue to be heavily litigated (i.e. failure to hire someone 8 months' pregnant), this decision will, no doubt, be extremely influential in creating new theories of pregnancy discrimination.