Is the inability to get pregnant covered under ADA? 10-14-2009

Ann Kiernan replies:

Under the proposed regulations implementing the Americans with Disabilities Amendment Act of 2008, if the woman has a "physiological disorder, or condition, cosmetic disfigurement, or anatomical loss" affecting her reproductive system, and she is "substantially limited" in her ability to reproduce, then she has a covered disability.

Other laws may cover the situation, too. The employee could be protected by the Family and Medical Leave Act, since infertility treatment is likely to meet the definition of "serious health condition". And, in Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008) a woman alleged sex discrimination when she was fired for taking time off from work to undergo in vitro fertilization. The employer argued that infertility is gender neutral, affecting both men and women, and the trial court agreed, dismissing the case. But the appeals court reversed, holding that the capacity to become pregnant was a condition related to pregnancy, and thus covered by both sex discrimination laws and the Pregnancy Discrimination Act. The circuit court further noted that employees discharged for taking time off to undergo in vitro fertilization - just like employees taking time off to give birth or receive other pregnancy-related care - "will always be women."

If you need to take time from work for infertility treatment, be sure to follow your company's FMLA, ADA, and related policies on taking leave.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.