It has been reported that 5 million or more couples in this country suffer from infertility, which is usually defined as the inability to conceive after 12 months of intercourse without contraception. Couples with these problems have traditionally required medical attention over prolonged periods of time, which is time consuming, emotionally draining, and which conflicts with their work schedules.
The treatment typically involves scheduled hormone injections, frequent visits to the doctor, and other assisted-reproduction techniques.
Infertility and the Americans with Disabilities Act
Since, infertility is a medical condition would it be covered under the Americans with Disabilities Act (ADA)? The ADA prohibits discrimination in the "terms, conditions, and privileges of employment" and defines a disability as "a physical or mental impairment that substantially limits one or more major life activities". Under Title I of the ADA, the test for whether there has been discrimination involves a finding that:
- The person is disabled under the statute;
- The person is otherwise qualified for the position; and
- Whether the person could do the job if there was reasonable accommodation.
The first question to be resolved is whether infertility is a disability under the ADA. The U.S. Supreme Court in Bragdon v. Abbott (524 US 624) found that "reproduction falls well within the phrase "major life activity. "
In the Bragdon case, a woman with HIV sued her dentist claiming discrimination under the ADA for failure to provide her dental treatment. In order for the plaintiff in Bragdon to prove discrimination, she had to not only show that she had a "physical impairment", but that it impacted a "major life activity". The plaintiff in Bragdon chose to focus on her substantially limited ability to reproduce.
The court had no trouble finding that HIV was a physical impairment or that reproduction was a "major life activity", but they stopped short of finding that HIV was a per se disability under the ADA.
Subsequent cases have used the Bragdon decision to find that infertility is a disability under the ADA. However, there seem to be limits. In Justice O'Connor's dissenting in part comments, she did not believe that giving birth met the requirements for a disability under the ADA.
In her view, a major life activity was representative of all persons, "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." And in fact, courts since Bragdon have ruled that pregnancy is not a disability under the ADA. See Gorman v. Wells Mfg. Corp.
Health Plans Need not Cover Infertility Treatments
Although, infertility has been recognized as a disability under the ADA, that does not mean that medical treatments need to be covered under an employer's health plan. The Saks v. Franklin Covey Co. case brought the issue into focus. The Saks court recognized that infertility is a medical condition, but refused to find that a health plan that excluded infertility treatments discriminatory under the Pregnancy Discrimination Act (PDA) or the Americans with Disability Act. The court reasoned that because both men and women have infertility issues and the health plan denied treatments to both sexes, it was not discriminatory.
Refusing Time-off for Infertility Treatments May be Discriminatory
Still, even if an employer's health plan need not cover infertility treatments, an employer can still be subject to discrimination claims for failing to allow an employee to take time for fertility treatments. In the matter of Hall v. Nalco, the plaintiff, Cheryl Hall, was fired for taking time off from work for in vitro fertilization treatments. The court found that the employer had violated the PDA because of its adverse action affecting the childbearing capacity of Hall.
The employer did not put forth a legitimate business reason for terminating Hall. In addition the time of the firing was just after Hall had undergone one treatment and just before she was scheduled to undergo another, which the court found highly suspect.
Therefore, the court held that since the PDA had been violated and there was no mitigating business reason, the employer had discriminated against Hall on the basis of sex.
The court in Pacourek v. Inland Steel Co. went further in finding that not only was infertility discrimination a violation of the PDA, it was also a violation of the ADA. In Pacourek, the plaintiff was fired when she informed her employer that she intended to become pregnant through in vitro fertilization. The employer claimed she was fired for excessive sick leave.
The plaintiff countered that the sick leave policy was disparately applied against her. Not only did the court find that the PDA covers discrimination based on potential or intended pregnancy, the court found that the plaintiff had a disability covered under the ADA.
Infertility and the EEOC
The Equal Employment Opportunity Commission (EEOC) has regarded discrimination based on infertility as a violation of the PDA. The PDA provides that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions. The EEOC has interpreted this to mean the PDA prohibits discrimination for:
- Current Pregnancy;
- Past Pregnancy;
- Potential or Intended Pregnancy; and
- Medical Conditions Related to Pregnancy or Childbirth
The EEOC recognizes the distinction between discrimination based on needing to take time off for infertility treatments and discrimination with respect to exclusion of infertility treatments in an employer provided health plan.
They follow the rationale of Saks in that a health plan can exclude infertility treatments and not be discriminatory as long as it applies equally to both genders. However, taking time-off for infertility treatments is another matter.
The EEOC will pursue employers for infertility discrimination as was evident when it filed suit against a Hawaiian resort retailer. A settlement with Step Three, Ltd, and the EEOC resolved the pregnancy and disability discrimination suit. Step Three employed a female retail buyer.
They disciplined her when she told them of her need for fertility treatments and then fired her when she needed travel accommodations after she became pregnant. The EEOC charged Step Three with infertility discrimination and rather fight the suit, Step Three settled.
Employers Need to Protect Themselves
It seems reasonably clear that infertility can be considered a disability, but it also seems clear that the courts will not recognize infertility as a disability under the ADA for all purposes. However, courts have found infertility discrimination against employers.
Therefore, in order to protect themselves, employers need to treat infertility issues as possible discrimination claims, if not handle appropriately.
An employer has the right to verify the existence of the infertility by demanding medical documentation. Once the infertility has been medically verified, then the employer should take steps to allow for reasonable accommodation and to prevent harassment by other employees.
However, an employer can demand that the infertility treatments not substantially interfere with the person's job duties or the overall performance of his or her department. Care must be taken, if an employer wants to discipline or discharge an employee undergoing infertility treatments.
The employer must have a provable and valid business reason that is separate from the infertility. If the employee establishes a disability under the PDA or the ADA, then the burden will shift to the employer to prove that its actions were reasonable.