In a series of recent decisions, federal district courts in Chicago have ruled that infertility is a disability as defined by the Americans with Disabilities Act ("ADA"). Erickson v. Board of Governors (9/2/97); Bielicki v. City of Chicago, (5/8/97); and Pacourek v. Inland Steel Company (2/16/96).
Under the ADA, it is unlawful for an employer to "discriminate against a qualified individual with a disability because of the disability . . . in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. 12112(a). The ADA defines a "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of an individual . . ." 42 U.S.C. 12102(2). A "physical impairment" includes "[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine . . ." 29 C.F.R. 1630.2(h)(1).
Federal district courts in Chicago have ruled that reproduction is a major life activity and that infertility, as a physiological disorder of the reproductive system, is a physical impairment under the ADA. Because infertility substantially limits the major life activity of reproduction, infertile employees may pursue a cause of action under the ADA if they are discriminated against on the basis of their infertility. For example, in Pacourek, the district court held that an employee who was fired after missing several days of work to undergo fertility treatments could proceed with her claim under the ADA.
Federal courts in other jurisdictions have reached contrary conclusions. In Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996), the Eighth Circuit Court of Appeals affirmed the ruling of an Iowa district court that reproduction is not a major life activity. The Krauel court based its decision on the EEOC regulations that define the term "major life activity" to mean "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." Treating reproduction as a major life activity under the ADA, the court held, "would be inconsistent with the illustrative list of activities in the regulations, and a considerable stretch of federal law."
Following this same reasoning, a New Orleans district court held that reproduction is not a major life activity because it is not an activity engaged in with the same degree of daily frequency as the activities of walking, seeing, speaking, breathing, learning, and working. Zatarain v. WDSU Television Inc., 881 F.Supp. 240 (E.D. La 1995) These opinions have been expressly rejected by district courts in Chicago which have observed that the frequency of an activity does not determine if it is a major life activity, and that courts holding that reproduction is not a major life activity trivialize the importance of reproduction.
As a result of these recent opinions, employers in Illinois, and in other jurisdictions where courts have not yet spoken to the issue, must remain cognizant of the ADA when making employment decisions (e.g., insurance benefits coverage or discipline for attendance policy violations) that affect employees who are infertile or experience other reproductive problems.
This article was first published in the Spring 1998 Issue of Mayer, Brown & Platt's Labor and Employment Newsletter.
Copyright © 1999 Mayer, Brown & Platt. This Mayer, Brown & Platt article provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.