Making the Case for Treating Pregnancy Like a Disability (Really)

Advocates believe the startling approach will compel employers to be fairer, where existing laws have failed vulnerable pregnant women.

(Photo: Paul Bradbury/Getty Images)

Mar 5, 2014· 3 MIN READ
Shannon Kelley writes about the intersection of politics, pop culture, and feminism. She lives in California.

When Guadalupe Hernandez became pregnant in 2011, she was one of the beloved workers at a Mexican fast-food restaurant in Washington, D.C., who was marked for promotion.

But with pregnancy came a common need: frequent trips to the bathroom.

The brief absences were met with verbal abuse at first. Her boss harangued her in front of coworkers and told her she'd need permission every time she needed to go, she said. He denied her several times—though other workers were allowed to go as often as needed, without reporting it to management. She was fired soon after.

With the help of advocates, Hernandez filed a violation claim with federal labor authorities, and her experience is a clear-cut case of discrimination against pregnant women, advocates say. Despite the protections guaranteed under the 1978 Federal Pregnancy Discrimination Act, Hernandez's story is not uncommon.

“Pregnancy discrimination is alive and well in the workplace today,” said Liz Watson, director of Workplace Justice for Women and senior counsel at the National Women’s Law Center, noting there are many stories like Hernandez's in a new report from the center and working families advocacy group A Better Balance.

One problem is that current law says pregnant workers must be “treated the same as other workers who are similar in their ability to work,” but it stops there. It does not explicitly state that pregnant employees are entitled to "reasonable accommodations” as long as there is no “undue hardship” to the employer, as the Americans With Disabilities Act does.

So advocates are pushing for widespread passage of the Pregnant Workers Fairness Act, standalone legislation that would borrow that language from the Americans With Disabilities Act to make it clear that employers have a legal obligation to accommodate pregnant workers.

Of course, the idea of calling pregnant women "disabled" can be startling. Considering a perfectly healthy woman carrying twins to term may have some physical limitations, categorizing her with those who are dealing with lifelong health problems seems to cheapen the reality for the disabled and misidentify the experience of being pregnant.

Many employees can work throughout pregnancy without any accommodations, but often, it’s workers in low-wage, physically demanding jobs who need them—whether more frequent bathroom breaks, a reprieve from heavy lifting, or a stool to sit on while working a long shift at a cash register. The center estimates 71 percent of American mothers are in the workforce, and 75 percent of women entering the workforce will be pregnant at some point during employment.

Notably, such workers are often most reliant on every hour of work and every dollar of pay.

“It’s not just the woman’s pocketbook; it’s a family’s income,” Watson said. “If a woman can’t provide at this critical moment, for a lot of women, that’s going to push them into poverty, in what should be a time of joy.”

In another case, pregnant U.S. Postal Service worker Diana Teigland’s doctor ordered her to stay inside on very hot days; while the USPS provided indoor work for injured or disabled employees, it refused to let her work inside. During that record-hot Minnesota summer, Teigland had to take many days off and used up all the time she’d saved for maternity—time she needed, because her employer offered no paid leave.

Worse, sometimes when accommodations aren’t made, the health of a woman’s unborn baby is put at risk. Walmart employee Svetlana Arizanovska miscarried when Walmart wouldn’t accommodate her lifting restriction—again, something for which a disabled worker would be accommodated.

Technically, the specifications of the disabilities law should be applied to pregnant women too, the argument being that the Pregnancy Discrimination Act says pregnant women should be treated the same as similar employees, and an injured or temporarily disabled employee is similar to a pregnant one, Watson said. Often, this isn’t understood by employees, their managers, or even, sometimes, the courts.

“Courts have been misinterpreting the Pregnancy Discrimination Act, finding that pregnant women don’t need accommodations,” Watson said.

Employers are familiar with the disabilities law—and their known benefits. According to the Job Accommodation Network, 71 percent of employers who have made accommodations under the Americans With Disabilities Act reported that doing so increased the employee's productivity, and 57 percent reported that making accommodations increased overall company productivity.

Such cases are bubbling up through the legal system; the Supreme Court is currently deciding whether to hear the case of Peggy Young, who was denied accommodations by her employer, UPS, while pregnant.

While that case awaits any possible hearing, states and municipalities are passing explicit new laws. After a unanimous, bipartisan vote, New York City’s Pregnant Workers Fairness Act took effect in January, joining jurisdictions with similar legislation, including Philadelphia, New Jersey, Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, and Texas.

Just this week, West Virginia’s senate judiciary passed a similar bill, which soon will reach the floor for a vote; a bill has been introduced in Wisconsin as well.

Such laws work, Watson said. California’s pregnancy accommodation law has been in place for more than a decade; in that time, charges in the state have declined, while they’ve risen nationwide.

“This is the law working at its best—it gives [employees] a real leg to stand on to negotiate with employers. When that clarity is in place, litigations go down,” Watson said.

In California, applying for leave is already synonymous with filing a disability claim.