In the United States, pregnant women are protected against employment discrimination under many circumstances. These protections are necessary and in line with similar laws for other forms of employment discrimination, such as gender, race or religion. However, pregnancy discrimination protections are not complete. Namely, women are denied disability coverage for pregnancy under the Americans With Disabilities Act (ADA).
Professor Jeannette Cox (University of Dayton, law professor) conducted research regarding employment discrimination and pregnancy. Based on her study findings, Professor Cox makes the argument that pregnant women suffer many of the same symptoms experienced by individuals covered by short-term disability under the ADA, according to a recent press release by the University of Dayton. Yet, pregnancy is not a protected disability and women who are with child are not entitled to the same reasonable accommodations that employers must legally provide to employees suffering from similar physical symptoms and limitations.
As Professor Cox notes, this is not a problem across the board; there are some employers who are willing to provide reasonable accommodations to their pregnant employees to allow them to continue working in a safe environment. However, this is not the case for many pregnant American workers. Study findings showed that some pregnant workers have lost their jobs due to physical limitations that regularly accompany pregnancy. This was often the case for women in physically demanding positions, such as those that require heavy lifting. It was also more common for women working in male dominated fields and in low-income occupations. Without ADA protections in place, many pregnant employees in these situations were terminated.
Supporters of Protecting Pregnancy as a Disability and ADA Protections
Supporters of extending disability protections to pregnant women, look at the similarity in short-term physical limitations suffered by some pregnant women and the comparable limitations already covered by the ADA. Employers are required to make accommodations and modify job duties for workers protected by the ADA. In many cases, the difference between a pregnant employee and a non-pregnant employee both suffering physical limitations is that the latter is entitled to keep his or her job and remain working in an altered capacity
Those in favor of including pregnancy as a disability point to the conditions protected by The Americans with Disabilities Amendments Act of 2008 (ADAAA). The Equal Employment Opportunity Commission (EEOC) issued changes to the ADA to make eligibility requirements easier for employees and to expand the conditions protected by the act as a disability. Changes made by the ADAAA became effective on May 24, 2011.
Though Congress intended many conditions and limitations to be considered protected by the ADA, they were not being protected in practice. Therefore, the definition and scope of “disability” was expanded to be more inclusive. This was done by including a three-pronged approach to meet the definition of a disability. The three-prongs are described as:
- “A physical or mental impairment that substantially limits one or more major life activities.” This refers to daily activities, such as seeing, hearing, walking, sleeping, eating, reading, concentrating, speaking, lifting and working, among other limitations. Also covered is the ability to perform normal bodily functions.
- “A record of having impairment” that substantially limits a major life activity.
- An individual is “regarded as having impairment.” This means that the individual has experienced treatment or an action prohibited by the ADA due to an “actual or perceived impairment.” Protected actions may include discriminatory practices such as failure to hire or termination of employment. An exception is if the impairment lasts six months or less, which is defined by the act as transitory.
An individual has to meet one of the prong requirements to be protected by the ADA against discriminatory employment practices.
Though the definition of disability has been expanded and many of the protected short-term disabilities are similar to limitations experienced by pregnant women, the amended rules did not go as far as to include pregnancy as a protected condition.
Opponents of Including Pregnancy as a Protected Disability
In contrast, opponents of including pregnancy protection under the ADA view pregnancy as a healthy function of the human body and not a disability. Others view pregnancy as a choice, drawing the distinction to some of the physical or mental impairments covered by the ADA. Though pregnancy may have some physical limits, opponents do not feel that they arise to the level of requiring special accommodations. An exception would be in cases where the health of the mother or baby is in jeopardy and a dangerous medical condition exists.
The courts have also balked at extending disability protections to pregnant mothers. Much of the courts’ reasoning behind their opposition rests in arguments similar to that of those against extending coverage. That is to say, pregnancy is a short-term natural condition that does not rise to the definition of a disability. Nor is pregnancy considered a condition serious enough to rise to the level of a protected “disability.”
According to Professor Cox, the court’s reasoning for refusing to extend disability protections stems from a misinterpretation of the intent of the ADA, which is geared toward providing accommodations to those who have been traditionally excluded and not just persons deemed defective by society due to their physical or mental limitations, as disabilities may have been defined in the past.
Current Pregnancy Discrimination Regulations
Though the ADA amendments do not extend disability protections to pregnant women, federal law does allow for protections under the Pregnancy Discrimination Act and the Family and Medical Leave Act (FMLA). California workers are also protected under the California Family Rights Act (CFRA). Under these laws, pregnant women are protected from workplace harassment and employment discrimination such as termination, promotions, failure to hire and wage matters.
In addition, if the employer offers accommodations to non-pregnant employees who are unable to perform job duties due to a medical condition or other disability, those same accommodations must be extended to pregnant workers unable to perform job duties. Employees are also entitled to up to 12 weeks of unpaid leave after the birth of a baby or due to a serious medical condition.
Know Your Rights
It is likely that debate regarding including pregnancy as a protected disability will continue and the outcome remains unclear. In the meantime, pregnant workers must rely on the protections currently in place, even though they may fail to safeguard pregnant employees in certain positions and job functions. If you feel that you have been discriminated against by your employer due to your pregnancy, speak with an attorney experience in employment law matters. A lawyer can help you enforce your legal rights and protect yourself against discriminatory practices.