DBTAC: Southeast ADA Center (Southeast DBTAC) A Project of the Burton Blatt Institute (BBI) of Syracuse University TIPS: Technical Information Perspectives and Solutions (“TIPS”)—February 2008 FERTILITY TREATMENTS and the ADA Copyright © 2008 The DBTAC: Southeast ADA Center (Southeast DBTAC) publishes various TIPS intended to provide current and useful information on issues and concerns related to the Americans with Disabilities Act (ADA) for advocates, business owners, government agencies, managers, and the general public. The examples used are based on actual questions received by the Southeast DBTAC, and are designed to strengthen the capacity of those who provide resources and technical assistance to help others achieve effective ADA compliance. The TIPS reflect the best professional, non-legal judgment of the Southeast DBTAC staff and its regional affiliate network. If you have questions or suggestions about how to improve TIPS, please contact: DBTAC: Southeast ADA Center (Southeast DBTAC) 1419 Mayson Street, Atlanta, GA 30324 (404) 541-9001 - (800) 949-4232 (v/tty) (404) 541-9002 (Fax) Email: sedbtacproject@syr.law.edu Web: www.sedbtac.org Copyright Permission For copyright permission, email the Southeast DBTAC at sedbtacproject@law.syr.edu. Organizations may reproduce this fact sheet for non-commercial use provided they acknowledge the Southeast DBTAC as the copyright owner and include the following credit statement: Reprinted from the DBTAC: Southeast ADA Resource Center website at www.sedbtac.org. TIPS: FERTILITY TREATMENTS and the ADA Background The Americans with Disabilities Act (“ADA”) protects individuals who presently have a disability, who have a record of a disability, or who are regarded as having a disability. The ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. A physical or mental impairment can be any physiological disorder or condition affecting a body system, including the reproductive system. In Bragdon v. Abbott, 524 U.S. 624 (U.S. 1998), the Supreme Court ruled that reproduction is a major life activity. Question: Since the Supreme Court decided that reproduction is a major life activity, have there been any ADA cases brought by a person with fertility issues? Response: Yes. Two years after the Supreme Court decided Bragdon, a federal district court in New York held that infertility is a physiological disorder affecting the reproductive system. An individual with a physical impairment is substantially limited in a major life activity if that individual either is unable to perform a major life activity or is significantly restricted in the way the individual can perform the major life activity, when compared to the way in which an average person in the general population can perform the activity. The federal district court in New York went on to decide that infertility substantially limits an individual’s ability to reproduce when compared with the ability of a person of the same age in the general population. However, the court indicated that age-related infertility, such as menopause, is not a disability under the ADA. A federal district court in Michigan reached these same conclusions, and distinguished infertility from sterility as the “diminished ability to become pregnant by natural means,” and not a complete inability to produce children. Question: If someone needed to miss a substantial amount of work to get fertility treatments and then lost their job could they claim discrimination? Response: Maybe. The ADA provides that a qualified individual with a disability is entitled to receive reasonable accommodations from her/his employer unless that accommodation would result in an undue hardship to the employer. A reasonable accommodation may include arrangements such as job restructuring, part-time, or modified work schedules. The reasonableness of allowing an employee to take time off from work for fertility treatments is likely to be a factual issue decided by a jury. Question: Has this issue been addressed by the Circuit Courts in the Southeast Region (4th, 5th, 6th, and 11th circuits)? Response: These circuits have not addressed the issue under the ADA. Endnotes 1 42 U.S.C. § 12102(2). 2 Id. 3 29 C.F.R. § 1630.2 (h)(1). 4 524 U.S. 624, 639 (1998). 5 Saks v. Franklin Covey Co., 117 F. Supp. 2d 318, 324 (S.D.N.Y. 2000). 6 29 C.F.R. § 1630.2(j)(1). 7 Saks, 117 F. Supp. 2d at 324; see also Laporta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 766 (W.D. Mich. 2001). 8 Saks, 117 F. Supp. 2d at 326. 9 Laporta, 163 F. Supp. 2d at 764 (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 838 (28th ed. 1994)). 10 42 U.S.C. § 12112(b)(5)(A). 11 42 U.S.C. § 12111(9)(B). 12 Laporta, 163 F. Supp. 2d at 767–68. DISCLAIMER: The Disability and Business Technical Assistance Center (DBTAC) – Southeast ADA Center (Southeast DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant No. H133A060094. However, you should be aware that NIDRR is not responsible for enforcement of the ADA. For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling 1-800-949-4232 (Voice/TTY). The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. The Burton Blatt Institute at Syracuse University (BBI) does not warrant the accuracy of any information contained herein. Any links to non-BBI information are provided as a courtesy. They are not intended to nor do they constitute an endorsement by the BBI of the linked materials. DBTAC: Southeast ADA Center (Southeast DBTAC) A Project of the Burton Blatt Institute (BBI) of Syracuse University 1419 Mayson Street, Atlanta, GA 30324 (404) 541-9001 - (800) 949-4232 (v/tty) - (404) 541-9002 (Fax) Email: sedbtacproject@syr.law.edu ? Web: www.sedbtac.org Funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education #H133A060094