Under the Pregnancy Discrimination Act of 1978 (PDA) and Title VII of the Civil Rights Act of 1964 (Title VII), it is unlawful for an employer to discriminate on the basis of sex, which includes discrimination on the basis of pregnancy and related medical conditions.
Even though infertility is gender neutral, the medical care required to treat infertility may not be.
Even if a court were to decide that an adverse employment action due to infertility treatments was not sex or pregnancy discrimination, the employee could possibly have an argument that there is discrimination based on disability. For example, if an employee is fired for taking time off for in vitro fertilization treatment that can be illegal discrimination in violation of the PDA and Title VII. This is because only women would likely require time off from work due to in vitro fertilization treatment. In other words, firing an employee based on child-bearing capacity can be discrimination based on sex, not infertility.
The Supreme Court has held that Title VII “prohibit[s] an employer from discriminating against a woman because of her capacity to become pregnant.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499 U.S. 187, 206 (1991).
Thus, women must not be discriminated against with regard to job opportunities or benefits because they might get pregnant. The Pregnancy Discrimination Act, which amends Title VII of the civil rights act, includes protection for women due to potential and intended pregnancies, which may include infertility treatments.
Employment decisions related to infertility treatments implicate Title VII under limited circumstances. Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.
Social Security would not consider infertility or related problems as a disability. The criteria for disability are very tough, and there isn’t even any gray area that would help this person. To qualify for SS when a person is under 50, one has to show that he or she is unable to perform any work at all, not even the most simple or menial job. Even in cases when a person has severe pain, if the person is under 50, the judges almost always will find they can be an “office helper” or “lens inserter.” So, a fertility claim would not be met.
Under the Affordable Care Act (ACA), infertility does not qualify unless it falls under the essential benefits covered such as ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services including behavioral health treatment, prescription drugs, rehabilitative and habilitative services and devices, laboratory services, preventive and wellness services and chronic disease management and pediatric services, including oral and vision care.
When dealing with legal issues as a result of infertility or infertility treatments, you should speak to an attorney experienced in the knowledge of Assisted Reproductive Technology Law, as all of these potential legal issues may be applicable to your personal situation and your understanding of the law and your options.
heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.
