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“Similar in Their Ability or Inability to Work” or: How Not to Discriminate Against Pregnant Employees

This week, the EEOC held a public meeting on unlawful discrimination against pregnant workers and workers with caregiving responsibilities at which experts, including the National Women’s Law Center’s own Vice President and General Counsel Emily Martin, presented compelling testimony setting out the widespread and often blatant ways in which employers continue to unlawfully discriminate in the workplace. Members of the Commission expressed dismay, if not complete surprise, that nearly 35 years after the Pregnancy Discrimination Act (PDA) was passed in 1978, discrimination on the basis of pregnancy persists, in the words of EEOC Chair Jacqueline A. Berrien, “unnecessarily depriving women of the means to support their families.”

The PDA amended Title VII of the Civil Rights Act of 1964 to clarify that—duh!—employment discrimination on the basis of pregnancy is a type of sex discrimination. (Sounds obvious, right? Well, it wasn’t to the Supreme Court.) The PDA requires employers to treat women “affected by pregnancy, childbirth, or related medical conditions” the same “as other persons not so affected but similar in their ability or inability to work.” This phrase is important—the PDA defines the sole relevant point of comparison between pregnant and non-pregnant workers as the person’s ability to do the job. So what does this mean?

First, consider that pregnancy discrimination claims appear to come up—at least based on the caselaw—most frequently in jobs that require a lot of physical activity like running, lifting, moving, standing, or repetitive motion. Many of the pregnancy discrimination cases arise in jobs traditionally held by men, such as law enforcement and trucking (so, ironically, pregnancy discrimination compounds the existing barriers that women face when attempting to break into many high-paying male-dominated positions), while others appear in female-dominated, often low-wage work like nursing assistance, cleaning, and retail.

Women in physically demanding jobs may seek light duty assignments from their employers at some point during their pregnancy. (For example, in a case from the Sixth Circuit, a pregnant truck driver sought light duty after her doctor told her that she shouldn’t lift more than 20 pounds; her usual duties required her to lift up to 75 pounds.) But many employers offer light or modified duty assignments only to those employees injured on the job, and therefore refuse to modify job duties to accommodate pregnant workers. Such policies unnecessarily force women out of physically demanding workplaces even when they could continue to do their job with slight modifications. But, remember, the PDA defines the sole relevant criterion for comparison as “ability or inability to work,” so a workplace policy that denies accommodations to pregnant women when accommodations are provided to those “similar in their ability or inability to work”—regardless of the root cause of that inability—is a blatant violation of the civil rights law.

Second, employers’ mandatory accommodation of a wide-range of disabilities under the Americans with Disabilities Act (ADA) must equally be afforded to pregnant women who are—together now!—“similar in their ability or inability to work.” In other words, an employer violates the PDA when it denies pregnant employees privileges that it gives to non-pregnant temporarily disabled employees with comparable physical restrictions. And since the 2008 ADA Amendments Act, employers are legally obligated to accommodate a wide range of permanent and temporary disabilities that are comparable to typical pregnancy symptoms and restrictions—for example, temporary back injuries, inability to lift more than 20 pounds, or conditions that cause shortness of breath or fatigue. It follows that since employers are legally required to accommodate many workers who are—you guessed it—“similar in their ability or inability to work” to pregnant workers, the PDA requires the employer to extend the same set of accommodations to pregnant women.

Pregnancy discrimination is a serious problem since women, who make up approximately half the workforce, are continuing to work while they are pregnant, working through later stages of pregnancy, and returning to the workforce after pregnancy in unprecedented numbers. The EEOC should meet the critical need for further guidance to educate employers on the specifics of their legal responsibility to not discriminate against pregnant workers. A legal responsibility that focuses on the similarities between pregnant women and other employees “in their ability or inability to work.” A responsibility, let’s not forget, that’s been in place since 1978.   

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