Southwest ADA Center

Legal E-Bulletin - April 2012

Is Pregnancy a Disability under the Americans with Disabilities Act?

Aaron McCullough

The Equal Employment Opportunity Commission’s (EEOC) records of pregnancy discrimination-based charges reflect significant increased charges since 1997 rising from 3977 charges in 1997 to 5797 last year in 2011.1 It seems clear that pregnancy-based discrimination is a serious and growing concern. This e-bulletin will explore pregnancy-related discrimination against women in the workplace, an examination of the laws protecting them, and the relationship between pregnancy and protections of people with disabilities under the ADA.

PREGNANCY DISCRIMINATION TODAY:

Over the past few months, the issue of discrimination against women who are pregnant or who have recently experienced childbirth has garnered a great deal of national attention. A high profile case out of Houston, Texas in February of 2012 resulted in the dismissal of a lawsuit of a woman who charged that she was fired based on her request that she be granted adequate breaks and privacy during her workday in order to use a breast milk pump.2 An op-ed in the New York Times the previous month (January 2012) titled “Pregnant, and Pushed Out of a Job,”3 garnered a great deal of attention in employment law and women’s rights blogs. It profiled cases of women fired from their jobs where simple workplace accommodations such as a few extra bathroom breaks or a temporary reassignment of tasks requiring lifting or climbing could have allowed continued employment, and proposed that laws requiring reasonable workplace accommodations are essential to protecting basic civil rights for women at work. That same month, and more relevant to disability civil rights concerns, a provocative article by law school professor Jeannette Cox was presented at a national academic conference that made the case that perhaps pregnancy should be treated as a disability and the protections of the ADA extended to pregnant employees.4

WHAT LAWS PROTECT PREGNANT EMPLOYEES?

The laws protecting pregnant employees fall into two basic categories, those laws prohibiting discrimination in hiring, employment and benefits of employment, and those laws governing leave.

Prohibition against discrimination:

The Pregnancy Discrimination Act (PDA)5 amended Title VII of the Civil Rights Act to clarify that pregnancy-based discrimination was sex discrimination. The Title VII provisions, and therefore of course the PDA, applies to employers with 15 or more employees. It prohibits treating any applicant or employee differently based on their pregnancy status, child birth or related medical condition. The PDA further requires that women so affected be accommodated in the same manner as any other temporarily disabled employee, and provided, “ light duty, alternative assignments, disability leave, or unpaid leave ... if it does so for other temporarily disabled employees.”6

Pregnancy and leave:

The Pregnancy Discrimination Act also covers certain rights to pregnancy-related leave. Those protections require employers to hold open jobs for women taking leave as long they would for any other employee taking temporary medical leave. It further prohibits forcing women to take leave when pregnant, and requires they be allowed to remain on the job so long as they are able to perform those jobs. The PDA also prohibits an employer from requiring an employee remain on leave status if a pregnant employee is unable to work due to pregnancy-related medical factor and takes leave, but then recovers and wishes to return to work.7

Pregnant women are also accorded rights to leave under the Family Medical Leave Act (FMLA).8 However, FMLA is applicable only to larger private employers --- those with 50 or more employees, or any public employer --- local, state, or federal agencies or schools; instead of the 15 employee threshold for Title VII. Additionally, an employee has to have worked for an employer for at least 12 months (no requirement that these be consecutive months), and at least 1250 hours within the previous 12 months to be eligible for leave under FMLA. Where it does apply then, FMLA requires employers to offer up to 12 weeks of unpaid leave in any 12 month period to employees who either have a serious health condition themselves, or must care for family members who are seriously ill. This, of course, covers pregnancy, childbirth, related medical conditions, and post-birth parental leave. Upon timely return from a FMLA leave, an employee must be returned to her job, or a position that is equivalent in terms of pay, benefits and other conditions of employment.9

PREGNANCY AS A DISABILITY UNDER THE ADA?

Is pregnancy a disability under the Americans with Disabilities Act (ADA)? In the past, the simple answer was no, since pregnancy by itself is not a physical impairment, is typically indicative of healthy biological processes, and is a temporary condition by its nature.  However, as with much of the ADA, the simple answer must give way to nuance and further examination of the law and its recent amendments.

In its historical guidance on the ADA, the Equal Employment Opportunity Commission (EEOC) maintained that pregnancy was not an impairment, and was thus not a covered disability.10 More recently, the EEOC indicates that pregnancy may give rise to substantial impairments that are disabilities covered under the ADA.11 Why the radical change? One could argue that this is a significant change in approach as the result of the ADA Amendments Act (ADAAA). However, it is actually more a clarification of the EEOC’s position that a pregnancy without complications is not a physical or mental impairment arising to an ADA disability, but that where the medical complications surrounding pregnancy create physical or mental impairments that actually do limit a major life activity or activities, and are therefore disabilities, that these may entitle an employee to workplace accommodations.12 EEOC guidance specifically references preeclampsia or gestational diabetes as specific potential complicating factors of pregnancy that may be considered a disability.13 A pregnancy-related impairment may also meet the definition of disability is it acts as a “record of a substantially limiting impairment,” or creates a circumstance where an employee is “regarded as” disabled, and is subsequently discriminated against by an employer.14

LITIGATION SURROUNDING PREGNANCY AND CLAIMS OF DISABILITY

Prior to the passage of the ADAAA, courts routinely refused to extend coverage of the ADA in pregnancy. For example, in 1996 the US District court for the District of Kansas carefully examined the argument that pregnancy and related conditions were a disability, and rejected the plaintiff’s ADA claim,  stating that neither pregnancy, nor “the physiological conditions and changes related to a pregnancy [are] impairments unless they exceed normal ranges or are attributable to some disorder.15 In a case more immediately preceding the passage of the ADAAA, a different district court in 2008 held that the plaintiff could only assert an ADA claim were her impairments, which were an inability to "perform heavy lifting, climbing ladders and other strenuous movements,” more permanent in nature, and not just temporary limitations related to her pregnancy.16

Additionally, in a 6th Circuit decision arising from facts that also pre-date the ADAAA, the court there held that atypical physical impairments related to pregnancy, such as a risk of miscarriage, might be a substantial impairment of a major life activity and a disability under the ADA.17 But to further muddy the legal waters, consider that a year after that decision, the 7th Circuit held that that while a pregnancy complicated by an increased risk of miscarriage could be a physical impairment, in that case it was still not a disability under the ADA due to the temporary nature of the condition, and the lack of long-term limitations.18

WHAT NOW?

Given the changes in guidance on pregnancy discrimination, it appears that EEOC is entertaining an expansion of the ADA’s coverage to protect women who are pregnant and experiencing complications creating impairments.19 This is supported by the fact that the EEOC has recently initiated a lawsuit on behalf of a pregnant former employee against a major homebuilder for failure to provide additional unpaid leave. In that case, a project manager experienced severe complications related to the pregnancy and was required to take seven months bed rest. While she was initially granted some leave, she was dismissed after her employer asserted that it was a violation of an employment policy to grant additional leave, even if unpaid.20 There the EEOC appears attempting to use the ADA to attack a rigid employment policy that refused to consider leave as a reasonable accommodation out past where the 12 weeks FMLA could extend. It is unclear how the court will treat this particular case, or this possible trend to expand the protection of the ADA more broadly where pregnancy is at issue. Be assured that the staff and affiliates of the Southwest ADA Center will be watching, and preparing to update you.

For more information, please consider participating in the live webinar on this subject titled: Pregnancy Discrimination, Disability, and the Americans with Disabilities Act.  For those unable to participate at that time, most webinar are recorded and the recordings are generally available as on-demand trainings shortly after the live presentation.


The contents of this e-bulletin were produced by the author and the Southwest ADA Center under a grant from the Department of Education, NIDRR grant number H133A060091. However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government. The information provided is intended solely as guidance and is neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.

References

1. Pregnancy Discrimination Charges EEOC & FEPAs Combined: FY 1997 - FY 2011: http://eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm

4. This e-bulletin was inspired by the written by University of Dayton School of Law professor Jeannette Cox, and presented January 5, 2012 at the Association of American Law Schools 2012 Annual Meeting: Cox, Jeannette, Pregnancy as 'Disability' and the Amended Americans with Disabilities Act (November 18, 2011). Boston College Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1961644  Please note that professor Cox will be presenting on this issue in a July 18, 2012 web-cast titled “Pregnancy discrimination and the ADA.

5. 42 U.S.C. § 2000(e) et seq.

7. Facts About Pregnancy Discrimination: http://www.eeoc.gov/facts/fs-preg.html

8. 29 U.S.C. § 2601 et seq.

9. Fact Sheet #28:  The Family and Medical Leave Act of 1993 (Revised February 2010): http://www.dol.gov/whd/regs/compliance/whdfs28.htm

10. The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964, Question #9: http://www.eeoc.gov/policy/docs/fmlaada.html

11. Pregnancy Discrimination & Temporary Disability: http://www.eeoc.gov/laws/types/pregnancy.cfm

12. Appendix to 29 C.F.R. 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act.

13. Pregnancy Discrimination & Temporary Disability: http://www.eeoc.gov/laws/types/pregnancy.cfm

14. 29 C.F.R. 1630.2.

17. Spees v. James Marine, Inc., 617 F.3d 380 (2010).

18.  Serednyj v. Beverly Healthcare, LLC., 656 F.3d 540 (2011).

19. Above n. 7, 10, & 11.

20. PRESS RELEASE,10-1-09, D.R. Horton Sued By EEOC For Disability Discrimination: http://www.eeoc.gov/eeoc/newsroom/release/10-1-09a.cfm