How Employers Get Away With Firing Pregnant Women -- Legally

pregnant women disability workAs a driver for UPS, Peggy Young sometimes had to lift up to 70 pounds on the job. When she got pregnant, her doctor said that probably wasn't a good idea and Young should stick to packages 20 pounds or less. Even though UPS routinely assigns "light duty" to injured or disabled employees, it put Young on unpaid leave. She lost her medical coverage.

Young sued in 2008. She lost, and joined the many other women who have tried, and failed, to prove their case in the courts. The Equal Employment Opportunity Commission received 5,800 pregnancy discrimination complaints in 2011, up from 4,000 in 1997. Complaints of pregnancy discrimination have become so common that the EEOC even held a hearing on the subject last month, examining how best to get employers to comply with the law.

Six states -- California, Connecticut, Illinois, Louisiana, Minnesota, New Hampshire, and Michigan -- currently have laws that require employers to provide pregnant women some accommodations. New York is considering its own bill to do the same.

Many legal advocacy groups, like Legal Momentum, A Better Balance: The Work & Family Legal Center, and the National Association of Mothers' Centers, are pushing for pregnant women to receive "reasonable accommodations" in the workplace, just like workers with disabilities under the Americans with Disabilities Act.

In a recently published paper in the Boston College Law Review, University of Dayton law professor Jeannette Cox argues that the act should actually be amended so that the ADA includes pregnancy. In other words, she wants to redefine pregnancy as a disability covered under the law.

Under the Pregnancy Discrimination Act of 1978, it's illegal for employers to fire, demote, reassign, or refuse to hire a woman for being pregnant. The law says that pregnant women should be treated just like any other employee, but that doesn't mean that they should be given any kind of special accommodation. Only Americans with disabilities are entitled to that.

The ADA defines a disability as an impairment that "prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." In 2008, George Bush approved an amendment to the ADA, which means even more disabilities will be covered under the law, including more conditions linked to pregnancy and "episodic" impairments. Pregnancy itself, however, remains merely a "serious health condition."

In the Young case, UPS said that it didn't discriminate against her for being pregnant. UPS employees were entitled to "light duty" if they had been injured on the job, injured off the job and failed a Department of Transportation medical exam, or fell under the ADA.

None of these things were true for Young. She wasn't forced to take leave because she was pregnant, the judge ruled. She was forced to take leave because she couldn't do her job. UPS' rules were "pregnancy-blind."

Should Employers Be "Pregnancy-Blind"?

Despite the ADA and Pregnancy Discrimination Act, women have long been pushed out of their jobs due to their pregnancies; employers insisted they were "pregnancy-blind," and the courts agreed, upholding the dismissals.

  • A Lord & Taylor's saleswoman was fired because she was repeatedly tardy due to severe morning sickness. The court sided with the store.
  • A real estate company eliminated the position of a woman who was on maternity leave, receiving treatment for post-partum depression. The firm said it was easier to lay off someone who wasn't there, and the court said that was OK.
  • Norton Company placed a pregnant lab technician on unpaid leave, because her work involved exposure to toxic chemicals. The court dismissed her lawsuit.

"It is unconscionable that, nearly 35 years after passage of the Pregnancy Discrimination Act of 1978, women are still being forced to leave jobs, being denied basic and reasonable accommodations that would allow them to continue to work during pregnancy, and being paid less than other workers because of pregnancy and motherhood," said Congressman Jerrold Nadler (D-N.Y.), who is currently drafting legislation to address the problem.

Cox thinks re-classifying pregnancy as an impairment is one solution. If that happened, all the above incidences would be illegal, because they'd violate the ADA.

Pregnancy Redefined As A Defective State

Many women's advocates grimace at the idea of labeling pregnancy a disability, and sending the message that being with-child is a physically defective state. After all, that seems to feed into the stereotypes of pregnant women as incapable, fat, lazy and sick, which discrimination laws are there to protect against.

Cox says disabled people have long faced this problem. The ADA, she says, "forces them [disabled individuals] to acquiesce to the majority view -- that your body is defective -- in order to challenge the majority view that you can't work."

But the outcome, she says, has ultimately been positive. "Many think of the ADA (Americans with Disabilities Act) as a civil rights statute," says Cox, "empowering people with disabilities, and enabling them to challenge barriers that exclude them."

Many women over time have also feared that special legal protections in the workplace, beyond mere equality statutes, would backfire. They'd make it seem like women truly were the weaker sex, in need of coddling. They also run the risk of making women more expensive to employ.

"It's a debate internal to feminism," says Cox. "Do we want our laws to treat us equally, exactly the same? Or to give us equal employment opportunities, which account for our physiological difference and a history of exclusion?"

The question is likely to gain greater urgency, as more pregnant women remain in the workforce. Between 2006 and 2008, two-thirds of women pregnant with their first child worked through it.

Cox thinks defining pregnancy as a disability doesn't mean being pregnant is actually a condition like a slipped disc or a pacemaker. Rather, she believes disability under workplace law should be defined socially, and not just physically. The way pregnancy "interacts with the architecture and rules of the workplace," she says, makes it function like a disability in practice.

The ADA's purpose, according to Cox, is to reshape the workplace to allow the previously excluded to work like anybody else. And if the government wants to be true to the spirit of this statute, Cox believes pregnant women should be included in its project.

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