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Best Ohio Disability Discrimination Lawyer Reply: Does the Americans with Disabilities Act (“ADA”) protect female employees suffering from infertility? I need time off for fertility treatments, but my boss refuses to let me leave for appointments, can I sue for pregnancy discrimination?

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I have a friend from college that got married a little bit later than normal, and as a result, when he and his wife started to try to have kids, his wife was high risk and having trouble getting pregnant. Because getting pregnant and having kids was very important to my friend and his wife, she underwent fertility treatments. Now, as is typical with couples that marry well into their 30s, both of them were firmly entrenched in professional careers, and the fertility treatments required regular time off from work. Because my friend’s wife was in a time sensitive, deadline driven job, her supervisor complained every time that she took off work and expressed concern about what would happen when the baby was born. Thankfully for them, all turned out okay. They had twin girls and no one lost their job. But, that is not the happy ending that everyone gets.

Discrimination on the basis of an employee’s pregnancy is protected under Title VII of the Civil Rights Act of 1964and Ohio R.C. § 4112.02. What protects employees who are not pregnant, but are struggling with medical issues in a quest to become with child? Advances in science and technology have allowed many people who would not be able to carry a pregnancy to become pregnant without the need for a surrogate or adoption. Many of the treatments require invasive procedures that can substantially alter the life of a female employee. Employees trying to get pregnant may need time for doctors appointments or even bed rest to prevent a miscarriage. Can an employer deny reproductively challenged employee an accommodation for infertility treatments? Are infertile employees protected under the Americans with Disabilities Act?

Can I be fired for taking time off of work for fertility treatment? Call attorney Brian Spitz and the employment discrimination lawyers at Spitz, The Employee’s Law Firm to get a free initial consultation regarding you disability discrimination, pregnancy discrimination or wrongful termination rights.

In LaPorta v. Wal-Mart Stores, Inc, the LaPorta worked for Wal-Mart as a Pharmacist and was required to work ten hour shifts three to four days a week. While working at Wal-Mart, LaPorta began to seek infertility treatments from her gynecologist. After numerous failed attempts to get pregnant, LaPorta switched to a new physican who required her to take time off of work for aggressive in vitro fertilization procedures. LaPorta began to request time off of work and kept her supervisors apprised of when she would need time off for medical treatments. LaPorta was fired soon thereafter on the grounds that she was unable to work her ten hour shifts. She then sued for wrongful termination.

The United States District Court, W.D. Michigan, Southern Division, in its decision denying Wal-Mart’s motion to dismiss, decided a reasonable jury could find LaPorta suffered from infertility and that the condition may have led to her termination from Wal-Mart. Infertility is a medical condition that is protected by the ADA because it affects a major life activity, namely the ability to reproduce.  The Court also found that a jury could find LaPorta’s requests for days off or shift changes reasonable under the ADA.

In light of the decision in LaPorta, employees who are suffering from infertility and need job protected leave may be entitled to a reasonable accommodation from their employer under the ADA. Specifically, the Court held:

The record discloses that Dr. Eward diagnosed plaintiff as suffering from infertility, and that she thereafter underwent a protracted and expensive effort to avoid the consequences of this condition through artificial insemination and in vitro fertilization. A reasonable jury faced with this evidence could certainly conclude that plaintiff suffered from infertility at the time of her termination. … The Bragdon Court held that “[r]eproduction falls well within the phrase `major life activity.’ Reproduction and the sexual dynamics surrounding it are central to the life process itself.” 524 U.S. at 638, 118 S.Ct. 2196. In so holding, the Court rejected the contention that Congress intended the ADA only to cover those aspects of a person’s life which have a public, economic or daily character. …

Ms. LaPorta is not asking the court to consider her situation in an uncorrected state. To the contrary, she points to the need for accommodation arising from the corrective measures themselves. Defendant would have the court focus upon the positive effects of the ameliorative treatment (plaintiff ultimately conceived a child) without taking into consideration the negative effects (the need for frequent medical treatment in order to do so). In effect, defendant advocates for a per se rule under which a condition that is subject to any amelioration, however onerous, would not qualify under the ADA. Such an approach is directly contrary to the teaching of the Supreme Court. “The Act addresses substantial limitations on major life activities, not utter inabilities.” Bragdon, 524 U.S. at 644, 118 S.Ct. 2196. On the basis of the evidence now before the court, a jury could find that plaintiff’s condition of infertility, even as ameliorated, still substantially limited the major life activity of reproduction at the time Wal-Mart fired her. …

The ADA requires covered employers to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability, unless the employer bears the burden of showing that the accommodation would impose an undue hardship upon it. 42 U.S.C. § 12112(b)(5)(A). In the present case, plaintiff asserts that Wal-Mart failed to accommodate her need to be absent from work on November 10, 1997, for purposes of infertility treatment. Wal-Mart argues that plaintiff’s requested accommodation was not reasonable.

Under the definitional section of the ADA, the term “reasonable accommodation” is defined to include, among other things, “job restructuring” or “part-time or modified work schedules.” 42 U.S.C. § 12111(9)(B). Plaintiff’s request for time off for purposes of medical treatment certainly falls well within this statutory definition. See Cehrs v. Northeast Ohio Alzheimer’s Center, 155 F.3d 775, 782 (6th Cir.1998)(“Medical leave as an accommodation is not a novel concept.”). Wal-Mart nevertheless argues that plaintiff’s request was unreasonable in the circumstances, because plaintiff “ignores the repeated accommodations provided by Wal-Mart both for her back injuries and for doctor’s appointments and other procedures related to her efforts to conceive a child.” … Plaintiff has produced sufficient evidence upon which a jury could find that her requested accommodation of a single day off was objectively reasonable. Defendant’s arguments concerning the effect of past accommodations, lack of substitute personnel, and the need for predictable attendance all relate to the question of undue burden, upon which defendant bears the burden of persuasion. The evidence on the issue of undue burden is not so one-sided that Wal-Mart must prevail as a matter of law. Consequently, the issues of the reasonableness of the accommodation and the undue burden thereof must be decided by the jury.

It is also important to note that this decision came before The ADA Amendments Act of 2008 (“ADAAA”), which overturned a series of United States Supreme Court decisions that that made it difficult to prove that an employee had a disability under the ADA. The ADAAA made major changes to the definition of disability under the ADA by significantly broadening what will be considered a disability. Simply stated, the ADAAA’s change to the definition of disability means that virtually everyone employee with a medical condition may be considered disabled under the ADA and be entitled to its protections. To that end, many employers no longer challenge the “disability” element of an ADA claim.

Thus, under the ADAAA, infertility would clearly be a disability entitled to accommodations.

Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. Call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.


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