Consultants' Corner: Volume 12, Issue 9
HOW DOES THE AMERICANS WITH DISABILITIES ACT (ADA)
APPLY TO EMPLOYEES WHO HAVE INFERTILITY?
From the desk of Linda Carter Batiste, J.D., Principal Consultant
With a few exceptions, the ADA only applies to employees who meet the ADA’s definition of disability, so the first question is whether an employee with infertility has a disability. The answer depends on what causes the infertility. To have a disability under the ADA, a person must have an impairment. Infertility refers to the inability of a person to reproduce, but may not always be caused by a diagnosed impairment.
For example, a middle-aged woman who is having problems conceiving may not have an impairment, but rather is simply confronting difficulties because of her age and normal changes to her reproductive system. Without an impairment, she would not have a disability under the ADA.
Even when an impairment is the cause of infertility, to have a disability under the ADA a person also must show that the impairment substantially limits a major life activity. For people with infertility, that major life activity can be reproduction, which is specifically designated as a major life activity in the ADA Amendments Act. For example, a person who had cancer may have great difficulty reproducing as a result of radiation or chemotherapy and therefore likely has disability under the ADA.
Assuming an employee with infertility has a disability under the ADA, he/she is protected from discrimination on the basis of that disability and is entitled to reasonable accommodations that are needed because of the disability.
The most common type of accommodations needed for infertility are modified schedules or leave for treatment and stress reduction.
Regarding discrimination, the most common issue that comes up is insurance coverage for medical treatment. The Equal Employment Opportunity Commission, which is the federal agency that enforces the employment provisions of the ADA, addressed this issue in an informal guidance letter: https://www.eeoc.gov/eeoc/foia/letters/2000/ada_infertility_benefits.html
Employment decisions related to infertility treatments also may implicate Title VII of the Civil Rights Act. For more information, see https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#IA3c