EEOC Informal Discussion Letter

This document was rescinded in December 2019 as part of EEOC's effort to provide guidance and information that is current, accurate, and clear.

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Definition of Disability - Infertility; Health Insurance and other Benefits

January 11, 2000

Dear :

This is in response to your letter, dated November 18, 1999, regarding the Americans with Disabilities Act of 1990 (ADA). You asked whether an employer-provided group health insurance plan may limit or totally exclude coverage for treatment of infertility.

ADA Principles

As you know, the EEOC enforces Title I of the ADA which prohibits discrimination against qualified individuals on the basis of disability in all aspects of employment. 42 U.S.C.

§ 12112. The ADA defines "disability" as a physical or mental impairment that substantially limits one or more of a person's major life activities, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). "Physical impairment" means any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the various body systems, including the reproductive system. 29 C.F.R. § 1630.2(h)(1). "Substantially limits" means unable to perform a major life activity that the average person in the general population can perform, or significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j).

Discrimination is prohibited with respect to all terms, conditions, and privileges of employment. 42 U.S.C. § 12112. This means that it is unlawful to discriminate with regard to "(f)ringe benefits available by virtue of employment, whether or not administered by the [employer]." 29 C.F.R. § 1630.4(f). The ADA, therefore, prohibits employers from discriminating on the basis of disability in the provision of health insurance to their employees. See EEOC Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer-Provided Health Insurance, June 8, 1993 (enclosed) [hereinafter Health Insurance Guidance].

Not all health-related plan distinctions discriminate on the basis of disability. A health-related plan distinction is disability-based if it singles out a particular disability (e.g., deafness, AIDS, schizophrenia), a discrete group of disabilities (e.g., cancers, muscular dystrophies), or disability in general (e.g., non-coverage of all conditions that substantially limit a major life activity). Health Insurance Guidance at 7. On the other hand, broad distinctions, which apply to the treatment of a multitude of dissimilar conditions and which constrain individuals both with and without disabilities, are not distinctions based on disability and do not violate the ADA as long as they are applied equally to all insured employees. Id. at 5.

If a distinction is disability-based, an employer may still defend it by showing that the health insurance plan is "bona fide," and that the disability-based distinction is not being used as a "subterfuge" to evade the purposes of the ADA. See 42 U.S.C. § 12201(c)(3) (1994); Health Insurance Guidance at 5. The Guidance discusses in some detail how an employer might make this showing. See id. at 11-13.

Whether Infertility is a Disability

At this time, the Commission has not taken a position on whether infertility is a disability in enforcement guidance or litigation. While the Supreme Court held, in Bragdon v. Abbott,

118 S. Ct. 2196, 2205 (1998), that reproduction (or procreation) is a major life activity, the determination of whether any particular individual with infertility has a disability will depend upon whether the infertility is the result of an underlying impairment and whether the ability to have children is substantially limited as compared to the average person in the general population.

Whether Employer-Provided Health Insurance Plans May Limit or Exclude Coverage for Infertility

At this time, the Commission has not taken a position in enforcement guidance or in litigation on whether a health insurance plan provision that provides inferior or no benefits for the treatment of infertility is a disability-based distinction. In making this determination, it is important to look carefully at how the terms of a particular policy are written and applied, and whether all or substantially all of the people affected by those terms are individuals with disabilities.

As noted above, even if a particular health insurance plan provision is found to be disability-based, an employer can defend it by showing that it is not being used as a subterfuge to evade the purposes of the ADA. Again, the Commission has not yet taken a position on how this principle would apply to a health insurance plan that denies or limits coverage for infertility treatment.

We hope this information is helpful to you. Please note, however, that this letter is an informal discussion of the issues raised by you and is not an official opinion of the Equal Employment Opportunity Commission.

Sincerely,

Christopher J. Kuczynski
Assistant Legal Counsel

This page was last modified on December 18, 2019.