If you have been fired because you requested or took time off for infertility treatment, you may have a wrongful termination claim against your employer. Although this is a relatively new legal issue, courts and commentators agree that denying an employee time off for infertility treatment may give rise to claims for sex discrimination and disability discrimination.
Title VII, the landmark federal civil rights law, prohibits employers from discriminating based on sex, among other things. Private employers must comply with Title VII if they have 15 or more employees. (Most states have their own laws prohibiting sex discrimination, which often apply to smaller employers. To find out your state’s rules, select it from the list at our Workplace Discrimination and Harassment page.)
Of course, both men and women can be treated for infertility. An employer who, for example, fires anyone who is infertile or undergoing infertility treatments might not be guilty of sex discrimination, as long as the employer treated male and female employees the same in this regard (although the employer may be violating the Americans with Disabilities Act, as explained below).
However, many procedures used to treat infertility, including surgical implantation (such as in vitro fertilization (IVF) treatments), apply only to women. For this reason, at least two courts have found that firing an employee for taking time off work for IVF and other infertility-related surgical procedures may be a form of illegal sex discrimination.
The Americans with Disabilities Act (ADA) protects employees with disabilities from discrimination. This federal law also requires employers to provide reasonable accommodations to employees with disabilities, unless doing so would create undue hardship for the employer. Like Title VII, the ADA applies to private employers with 15 or more employees. (Many states have their own disability discrimination laws as well, which may apply to smaller employers.)
A disability includes any physical impairment that substantially limits a major life activity or major bodily function. The proper functioning of the reproductive system is a major bodily function, and infertility requiring treatment would almost certainly be found to impose a substantial limit on that function.
Particularly in recent years, it seems likely that infertility would qualify as a disability. Congress's amendments to the ADA have expanded the definition of "disability" to include a broader range of conditions. And the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA and Title VII, has taken the position that infertility qualifies as a disability.
If you have a disability due to infertility, your employer is required to give you time off as a reasonable accommodation, unless it would pose an undue hardship. Undue hardship means a substantial expense or burden, given the size and resources of your employer. It’s unlikely that an employer would be able to successfully argue that providing time off is an undue hardship, absent extraordinary circumstances. Employers are routinely required to give time off to employees with disabilities for medical appointments. An employer that fires you for requesting or taking time off for treatment has likely violated the ADA.
If you have been fired for requesting or taking time off to receive infertility treatment, you should talk to an experienced employment lawyer right away. You may have a good case against your employer for wrongful termination under federal or state laws prohibiting discrimination.
If you want to sue your employer, you’ll need to first file a charge of discrimination with the EEOC or your state’s fair employment practices agency. A lawyer can help you draft the charge carefully and thoroughly, to make sure you preserve all of your claims and arguments. A lawyer can also help you try to negotiate a settlement or mediate your claims through an agency program.
If you want to file a lawsuit, you can ask the agency to issue you a “right-to-sue” letter, which states that you have filed your charge as required and now have the right to go to court. Make sure you have a lawyer lined up before you take this step, however. You have only a short time – as little as 90 days, in some cases – to file your lawsuit after requesting this letter.
You will definitely want the help of a lawyer in taking your employer to court. If you win the case, the court can order your employer to pay you for attorneys' fees and court costs. (For more on attorneys' fees, court costs, and other damages available in a discrimination lawsuit, see Employment Discrimination Damages.)