Indiana Law’s Deborah Widiss argues in a new law review article that employers should be required to provide reasonable accommodations to pregnant employees, similar to how they are for people with disabilities under the Americans with Disabilities Act.
The article analyzes the history of the Pregnancy Discrimination Act of 1978, an amendment to the Civil Rights Act of 1978 clarifying that the Act’s prohibition on gender discrimination encompasses pregnancy discrimination. However, the PDA also states that “woman affected by pregnancy…shall be treated the same for all employment-related purposes…as other persons…similar in their ability to work or inability to work.’”
While commentators have long argued whether pregnancy should be considered a disability, Widiss considers it as such for the purposes of the article. Widiss argues that it logically follows from the PDA’s text that it requires employers to treat pregnant employees similar to people with similar disabilities.
Therefore, employers would be required to provide reasonable accommodations such as “a transfer to a light duty position, relief from a lifting requirement, access to a seat, or excused time off from work.”
“Pregnancy is an integral part of women’s role in human reproduction. It is only a ‘disability’ if men are the norm against with ability is considered,” Widiss states. “But as Professor (Jeanette) Cox points out, the same is true of other conditions that are more classically recognized as ‘disabilities.’ The insight of the social model of disabilities, which underlies the ADA’s reasonable accommodation mandate, is that all disabilities are in some sense socially constructed.”
Widiss argument is bolstered by the 2008 Amendments to the ADA, which overturned several Supreme Court decisions that narrowed the definition of whom qualifies as having a disability. The ensuring guidance from the Equal Employment Opportunity Commission specified that the definition includes temporary disabilities, including those that last for as little as six months.
Similarly, the EEOC has long interpreted the PDA as including an affirmative obligation to provide reasonable accommodations, though courts have almost uniformly rejected this interpretation.
“The plain language makes clear it should not matter why an employer accommodates an employee who has limited ability to work, it should simply matter whether the employer has done so,” Widiss argues. “The PDA’s same treatment clause thus should be understood to create a substantive, albeit comparative, accommodation mandate. This approach appropriately incorporates consideration of the costs that accommodations impose on employers, while effectively insulating this analysis from still persistent misconceptions regarding pregnant women’s capacity and commitment to work.”
In September 2012, a group of senators introduced the Pregnant Workers Fairness Act, which if passed would expressly expand the ADA to encompass pregnancy.