Recently, at a Women’s Bar Association roundtable to discuss Young v. UPS, the Pregnancy Discrimination Act (PDA) case argued in December 2014 before the Supreme Court, talk turned to the other federal law that helps pregnant workers stay on the job: the ADAAA (Americans with Disabilities Act Amendments Act). Familiar with the ADAAA, but not with its use to protect pregnant workers, we wanted to understand whether and how the 2009 amendments to the ADA may have changed the landscape for pregnancy-related accommodations.
A number of scholars and practitioners have written about the still largely anticipated value of the amended law for pregnancy-related conditions, but we found Joan William's pragmatic analysis and advice in A Sip of Cool Water: Pregnancy Accommodation After the ADA Amendments Act (hereinafter Pregnancy Accommodations) most useful. Williams is the Director of the Center for WorkLife Law at the University of California, Hastings College of the Law, and she has long focused on issues of women and work. In Pregnancy Accommodations, Williams and her colleagues at the Center for WorkLife Law begin with a brief but comprehensive review of the status quo prior to the amendment of the ADA, especially the court decisions limiting the availability of accommodations for pregnant workers. This serves as a preface to Williams' argument that the amended ADA encompasses pregnancy-related conditions and should be used to ensure that pregnant workers have the accommodations they need to continue working through their pregnancies and beyond. Reviewing post-amendment judicial decisions, Williams offers specific practice tips for litigating pregnancy-related accommodations cases, and supplements this with a detailed chart listing at length "Some Pregnancy Conditions that Commonly Give Rise to the Need for Workplace Accommodations." Id. at 141ff. The chart, she explains, is designed to help plaintiffs analogize “their pregnancy-related conditions to parallel conditions that are not the result of pregnancy,” a strategy that she recommends to overcome the “unconscious bias and outmoded beliefs regarding women and pregnancy” that have hampered efforts to win accommodations for pregnant workers. Id. at 134.
Pre-amendment, the ADA did not apply to pregnancy – absent serious complications. Pregnancy-related conditions were too short in duration and rarely considered serious enough to "substantially limit" a "major life activity" under the restrictive standards of pre-amendment ADA jurisprudence. And, because pregnancy is a normal physiological condition (and therefore not, without complications, a disability), courts held pregnancy-related conditions were not covered by the pre-amendment ADA.
Even with the ADA amendments, expressly enlarging the range of conditions encompassed by the meaning of “disability,” pregnancy itself, absent serious complications, remains outside the scope of the ADAAA. Impairments resulting from pregnancy, however, even relatively minor ones, may now fall within the newly expanded definition of “disability.” Activities like “walking, standing, lifting, bending,” are now specified as “major life activities,” as is the functioning of specific bodily systems like the reproductive or endocrine systems. Whether a condition “substantially limits” is now judged by comparison with “most people in the general population.” Thus a lifting restriction, or restrictions on standing too long, common to the most normal pregnancy, but restrictive relative to “the general population,” may now qualify under the ADAAA as impairments that must be accommodated in the workplace.
Williams argues that by relying on comparators, plaintiffs may obtain new protection from pregnancy discrimination: "just as the amended ADA now protects vast numbers of workers whose conditions would not have qualified as disabilities prior to the passage of the ADAAA, it also protects women affected by identical conditions that happen to be caused by pregnancy." Id. at 114. Relying on a valid comparator in the person of a non-pregnant worker, who has the same “ability or inability to work” (see 42 U.S.C. § 2000e(k)), ensures that a pregnancy-related condition will be judged sufficiently disabling to qualify for accommodation. Williams pointedly advises that to overcome any lingering prejudice that pregnancy-related conditions are not covered by the ADA simply because they arise out of pregnancy (something she dubs “pregnancy contamination”), “plaintiffs should consider analogizing their pregnancy to parallel conditions that are not the result of pregnancy.” Id. at 135. And she helpfully provides in chart form potential “analogies” for pregnancy-related conditions. Id. at 142.
In Pregnancy Accommodations, Williams has provided a pragmatic litigation blueprint to help more plaintiffs make use of the newly-broadened protections of the amended ADA for pregnancy-related conditions.
1 Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013) cert. granted, 134 S.Ct. 2892 (2014) (No. 12-1226, 2014 Term, argued December 3, 2014).
2The amended ADA (ADAAA) was effective January 1, 2009 and was not retroactive, so cases applying the new law only just began to wend their way through the courts in the last few years.
3Joan C. Williams, Robin Devaux, Danielle Fuschetti, Carolyn Salmon, A Sip of cool Water: Pregnancy Accommodation After the ADA Amendments Act (hereinafter Pregnancy Accommodation), 32 Yale L & Pol’y Rev. 97 (2013); see also Jeannette Cox, Pregnancy as “Disability” and the Amended Americans With Disabilities Act, 53 B.C. L. Rev. 443 (2012); Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans With Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013).
This blog was written by Mary Kuntz.