TSLF Employment Blog

Do employers have to accommodate employees who are infertile?

Struggling With Infertility? The Law May Protect Your Rights at Work

Discriminated against because of a past pregnancy? Contact us.If you are trying to conceive but struggling with infertility, there are legal protections that can help you at work. At least three federal laws may come into play. Depending on the facts of the situation, not only should these laws protect you from being fired, but you may also be entitled to take some time off work for fertility treatment. All three laws have equivalents in state and District of Columbia law.

Pregnancy Discrimination Act/Title VII of the Civil Rights Act

The Pregnancy Discrimination Act (PDA) changed Title VII of the Civil Rights Act of 1964, which originally stated that discrimination based on sex is illegal. Under the PDA, that now includes protection against discrimination based on pregnancy, childbirth, or related medical conditions, all of which are considered unlawful sex discrimination.

Different judges often come to different conclusions as to the meanings of statutes. That’s also the case with the PDA. Federal appellate courts are split on the issue of whether the PDA covers discrimination due to infertility treatment.

In the case of Hall v. Nalco, the female plaintiff was fired due to her work absences while she was undergoing in vitro fertilization (IVF). The trial court dismissed her case, finding that infertility isn’t covered by Title VII because it affects both men and women and therefore couldn’t be considered sex discrimination. The Seventh Circuit Court of Appeals, however, reversed the dismissal, deciding that the employee was terminated for the “gender-specific quality of childbearing capacity” rather than the “gender-neutral condition of infertility.” The appellate court reasoned that IVF involves surgical impregnation, which is only available for women, so it could be the basis for a claim of sex discrimination under Title VII.

The Second and Eighth Circuit Courts of Appeals have viewed situations the other way. In Saks v. Franklin Covey Co., the Second Circuit decided that because infertility was a condition that affected both sexes equally and “surgical impregnation procedures” can treat men and women, excluding surgical impregnation as a covered benefit would not be discrimination under the PDA or Title VII. The Eight Circuit decided Krauel v. Iowa Methodist Medical Center on similar grounds, finding that infertility affects both men and women.

Americans With Disabilities Act

pregnancy test and infertilityIf you’re an employee with a fertility issue, the Americans with Disabilities Act (ADA) may be a safer bet for protection than the PDA and Title VII. Whether one sex or another suffers from infertility is irrelevant under the ADA, as is whether there are any treatments or procedures that address the condition.

The ADA makes it illegal for an employer to discriminate against a worker based on a disability, a perceived disability, or a record of a disability. The law mandates that covered employers provide their disabled employees with reasonable accommodations, unless those accommodations would cause an undue hardship or the employee presents a direct threat of harm to himself or herself or others.

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more…major life activities.” Infertility issues fall within the law’s broad protections. In 1998, the Supreme Court of the United States decided Bragdon v. Abbott, which held that the ability to reproduce and bear children is a “major life activity” within the meaning of the law. An employee who is substantially limited in the major life activity of reproduction can get protection under the ADA if she cannot take measures that would correct the condition.

The ADA Amendments Act of 2008 also widely broadened the definition of “disability.” It states that Congress intended the ADA to be read expansively, without considering any positive effect that a corrective measure might have, as the court did in Bragdon. Thus, if a worker has a physical impairment (infertility) and is substantially limited in a major life activity (reproduction) without considering the effect of corrective measures (fertility treatments that may enable conception), the fact that a procedure may correct the condition is irrelevant to whether the person falls under the ADA’s protections.

Under the ADA, it may be a reasonable accommodation to allow an infertile employee to take some time off or change a work schedule to facilitate treating that condition. It could also be illegal to fire or otherwise subject someone to unequal terms or conditions of employment because of his or her infertility.

Family Medical Leave Act

The federal Family Medical Leave Act (FMLA) could help employees by allowing for time off related to infertility and its treatment, but there are limitations to the law. The law covers employees and their spouses who have a “serious health condition,” which is an “illness, injury, impairment or physical or mental condition that involves inpatient care…or continuing treatment by a healthcare provider.” This is a lower standard than the ADA, so the law may cover infertility.

The FMLA provides for up to 12 weeks of time off, but that time is unpaid. If you can’t afford to stop getting paychecks, that may not be an option. Instead of taking off all 12 weeks in a block, FMLA leave may be used a little at a time to reduce or build breaks into a work schedule. In addition, FMLA is limited to employees who have worked for the employer for at least 12 months, logging at least 1,250 hours during that time. For private employers, there must be at least 50 employees within a 75-mile range of where the employee works for FMLA protections to apply. However, that size requirement doesn’t apply to government employers or to public or private schools.

Summing It Up

Millions of Americans are coping with infertility. Many of them are actively involved in treatment to try to have a child. This potentially stressful period could be made a lot easier with an accommodating employer, but that doesn’t always happen.

  • The PDA and Title VII may offer protection against discrimination, but the law is still unsettled about whether they cover an infertile employee.
  • The ADA’s broader protections may be more helpful. The law covers infertility, includes provisions that mandate reasonable accommodations under certain conditions, and bars discrimination.
  • The FMLA may help with time off, assuming that the employee falls under the law’s protections and can afford not to be paid while not working.

If you are having problems at work because of infertility treatment, or if your partner is, contact our office so we can discuss the applicable laws, the facts of your case, and your best options to protect your rights and interests.

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