Evaluating Purely Reproductive Disorders Under the Americans with Disabilities Act

Approximately 2.8 million American couples suffer from infertility, a condition generally defined by the medical community as the failure to conceive after one year of unprotected intercourse. During the past thirty years, diagnostic and therapeutic techniques for treating infertility have improved drastically, enabling many previously infertile couples to bear children. These techniques, however, involve considerable expense and inconvenience, frequently requiring patients to take time off from work. Disputes with employers may follow, sometimes resulting in the infertile employee’s termination. Some terminated employees, claiming that infertility constitutes a disability, then sue their former employers under the Americans with Disabilities Act of 1990 (“the ADA” or “the Act”). In enacting the ADA, Congress specifically stated the Act’s purpose: “[T]o provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The ADA’s prohibition on disability-based discrimination in employment specifically provides: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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.” The ADA also specifies, in a sevenpart description, the types of behavior that constitute discrimination against an individual with a disability. Congress failed, however, to state with the same specificity what constitutes a disability in the first place; instead, the Act broadly defines “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” Infertile individuals seeking ADA protection have argued that their impairments constitute ADA-protected disabilities because they “substantially limit” the “major life activity” of reproduction.