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Happy Birthday, ADA!

Expectant mothers risk losing their jobs, their babies, or both

Expectant mothers risk losing their jobs, their babies, or both when employers deny them pregnancy accommodations at work - accommodations as modest as the right to carry a water bottle due to persistent pregnancy-related urinary tract infections or the right to take more frequent bathroom breaks due to nausea. "We don't pay you to pee," said one supervisor.

A pregnant machine operator— we'll call Sara —gave her employer a doctor's note recommending that she be placed on light duty because of abdominal pain. Her employer responded that her only option was to go on unpaid leave, she told staff at the Equal Rights Advocates hotline. But, like many pregnant women, she needed to keep earning a paycheck to support her family, so she continued doing her job without an accommodation. Later in her pregnancy, she began experiencing pain while working the graveyard shift. Sara requested permission to leave, but her boss denied the request and insisted that she work until her shift was over several hours later. Sara gave birth to her son three months prematurely that evening; he has suffered through severe health and developmental issues as a result. Although Sara's employer agreed to extend her leave due to her son's health problems, she lost her job when that leave expired.

Armanda worked for an armored truck company for two years before she was pushed out of her job while pregnant. She pulled a muscle in her stomach while doing heavy lifting at work. So she got a note from her doctor ordering a lifting restriction--and was told she needed to go on leave, even though male co-workers with injuries had received accommodation without issue in the past. Without a paycheck, Armanda explained to the A Better Balance hotline, she lost her health insurance six months into her pregnancy and ended up having to apply for public assistance and Medicaid.

What do these stories have to do with the Americans with Disabilities Act (ADA), which was passed twenty-three years ago this week?

Pregnancy is not a disability per se. But women can develop a dazzling array of pregnancy-related disabilities, from life-threatening conditions such as preeclampsia and blood clots to non-life-threatening but painful conditions like pubic symphysis separation (which can cause severe back pain) to carpal tunnel (which is more common among pregnant women than in the general public) to the kind of severe nausea (known as hyperemesis gravidarum) suffered by the Duchess of Cambridge.

Some courts have held that pregnant women can qualify for accommodation under the ADA only when their pregnancy aggravates a pre-existing health problem, as claimed by the US District Court of the Eastern District of New York in Sam-Sekur v. The Whitmore Group. But this interpretation makes no sense: it would mean that an employee who developed carpal tunnel as a result of pregnancy is not entitled to ADA accommodation but an employee who developed carpal tunnel for any other reason is. Or that someone whose hypertension stems from any physical condition other than pregnancy is entitled to ADA protection but not someone whose hypertension results from pregnancy. Remember what Lady Sybil died of in Downton Abbey? Preeclampsia is pregnancy-related hypertension.

Before 2008, courts severely limited coverage under the ADA by sharply constricting the definition of disability. In the 2008 ADA Amendments, Congress instructed the courts to stop doing that and reiterated its intention for the ADA to have broad coverage.

Pregnancy is not excluded, though a few courts are still repeating that pregnancy is covered by the ADA "only in extremely rare cases" (to reference Sam-Sekur again). This interpretation is inconsistent with the Congressional command in the 2008 ADA that it "be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted..." Congress did not say that courts should construe the ADA broadly for everyone except pregnant women. Congress said courts should construe the ADA broadly for everyone.

So Happy Birthday, ADA. What a good birthday present it would be to pregnant women and their families if courts eliminated the so-called "normal pregnancy doctrine," which in effect says that pregnancy contaminates an otherwise-eligible disability so as to insulate employers from their duty to accommodate. That old-fashioned approach is reminiscent of the outdated view that pregnancy is a woman's cross to bear because of Eve's original sin. Let's leave Eve out of it, and join the 21st century.

Joan C. Williams is Distinguished Professor of Law at University of California, Hastings College of the Law.

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