Infertility’s Fertile Legal Ground

Fertility is a touchy subject. And unless you have experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it is difficult to understand the stress it causes.

Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization, or IVF, are time-consuming and time-sensitive.
What happens when a woman undergoing IVF treatments needs time off for those treatments? If her company fires her because of her infertility, could she present a sex-discrimination claim? Is infertility a disability protected by the Americans with Disabilities Act? Several judicial decisions and U.S. Equal Employment Opportunity Commission actions provide some insight.  

In Hall v. Nalco Co., the 7th Circuit Court of Appeals permitted a woman fired during her IVF treatments to proceed with her Title VII sex-discrimination claim. It did not help the employer’s cause that plaintiff Cheryl Hall’s manager told her that the termination “was in [her] best interest due to [her] health condition,” and that the company’s employee relations manager’s notes reflect that Hall had “missed a lot of work due to health,” and cited “absenteeism — infertility treatments” as the reason for her termination.

In permitting Hall’s pregnancy discrimination claim to go to a jury, the 7th Circuit relied on the fact 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.”

This issue is very much on the EEOC’s radar, which means it should be on employers’ radars, too.

Thus, an adverse action based on one’s need for time off from work to undergo fertility treatments is equal to sex discrimination. Stated another way, an employer that fires a female employee for missing work for IVF treatments discriminates not on infertility alone, but on the basis of medical conditions related to pregnancy.

Pregnancy is not the only type of unlawful discrimination fertility treatments implicate. Recently, the EEOC announced the settlement of a disability discrimination claim brought against an employer that fired a female employee after she disclosed that she was undergoing fertility treatments. In announcing the settlement, Timothy Riera, director of the EEOC’s Honolulu office, noted, “Federal law protects workers who are discriminated against due to their infertility, a covered disability. Workers who undergo fertility treatments should be treated like any other employee with a disability — with equal and careful consideration of reasonable accommodation requests.”

The EEOC’s approach to infertility as an ADA-covered disability is not novel. More than a dozen years ago, in LaPorta v. Wal-Mart Stores Inc., a Michigan federal court concluded that because infertility substantially limits the major life activity of reproduction, it was an ADA-covered disability. With the expansion of the definition of disability under the ADAAA, the act’s coverage of infertility should not be in dispute. (In that case, Wal-Mart was accused of denying a single day off as a reasonable accommodation for the employee’s fertility treatment).

There are three takeaways from this issue:

1. It is highly risky to terminate an employee who is seeking time off from work to undergo fertility treatments, whether you call it pregnancy/sex discrimination, or disability discrimination. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a nonpregnancy-related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures. Otherwise, an employer risks violating Title VII and the ADA.

2. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.

3. Infertility and its treatments are stressful on parents-to-be. Fertility treatments, particularly in vitro fertilization, are time-consuming and time-sensitive. Do not exacerbate an employee’s stress by toying with her time away from work. Employers that deny time off for fertility treatments may find themselves in a discrimination lawsuit.
While this issue is seldom litigated, employers that fail to accommodate employees’ infertility treatments or otherwise discriminate against employees undergoing fertility treatments could see an explosion of these types of claims. As the EEOC reminds us, “One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other possible issues.”

In other words, this issue is very much on the EEOC’s radar, which means it should be on employers’ radars, too.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.