J. Pregnancy as a Disability

The ability of pregnant workers to succeed in demanding special accommodations has been strengthened by the passage of state and local laws. Although the federal Americans with Disabilities Act (ADA) does not consider pregnancy a covered disability (since it is classified as a temporary nonchronic impairment with no long-term impact), some state laws have ruled it is a per se disability requiring a company to make reasonable accommodation when requested by an employee. Under these state laws, the physical demands of pregnancy may require companies to allow pregnant workers to work at home or rearrange their work schedules. When a woman seeks reasonable accommodation during pregnancy, an employer should be responsive to the particular physical limitations that the employee brings forward on a case-by-case basis. Employers unwilling to comply with such a request are required to justify their decisions by demonstrating that compliance would create an undue hardship.

A recent case illustrates these issues. When a New York employee filed a lawsuit claiming she was fired for taking too many days off because of her pregnancy, a judge ruled that she could continue with her case. The judge held that while pregnancy itself may not be a disability under federal law, physical complications resulting from pregnancy can qualify for statutory protection under both federal and state guidelines.

The woman suffered severe physical symptoms resulting from pregnancy complications, forcing her to call in sick on numerous occasions. She also missed work because her doctor could see her only during normal working hours. Although she conscientiously called in sick and gave adequate advance warning, she was fired.

The employer asked the judge to dismiss the case since pregnancy is not a covered disability under the ADA. However, the judge ruled that while a normal pregnancy is not considered an impairment, physical complications resulting from the pregnancy, such as severe back pain, nausea, and bleeding, may constitute a physiological impairment substantially limiting a major life activity (i.e., working). The judge also ruled that an employee qualifies for ADA protection even if she does not have an actual disability, if the employer treats her as if the disability existed and makes adverse decisions as a result.

Finally, the employee argued that she was able to reasonably perform her job duties despite her absence and that the company had not fired other workers with significant absences caused by other disabilities.

The case is now proceeding to a jury trial.

Tip:Check your state's law on this issue to understand the extent of protection available to you. If you find the law is favorable, consider requesting reasonable accommodation (such as reporting to work an hour later each day or being allowed to work from bed if you risk losing a baby without extensive bed rest). Speak to a lawyer for more details when applicable.

In another case, when an employee discovered she was pregnant, she was warned by a co-worker that her manager would not be happy to hear the news. After she told her manager, he asked personal questions about birth control and how her parents felt about her being unmarried and pregnant. He later noted in a performance appraisal that she was an unwed expectant mother.

After giving birth, the woman suffered complications and requested an extended leave. Her doctor submitted a request for additional time off. The company refused and sent her a letter accepting her "voluntary termination."

The woman sued, claiming that the company violated the federal Pregnancy Discrimination Act (PDA). Based on the company's refusal to honor the doctor's written request and the manager's actions, the court awarded her more than $90,000 in back pay, punitive damages, and damages for emotional distress.

Counsel Comments:Recognize, however, that the law might be decided differently, depending on the facts. For example, in another case, a supervisor noted that a female employee had trouble meeting deadlines, handling her workload, and dealing with others. When the employee went on maternity leave, a backlog of her work was discovered. Management decided to demote her to a job with less independence, discretion, and pay. The employee refused to take the job and sued the company under the PDA. She claimed that her status as a new mother prompted the demotion, especially since she had been told by her supervisor that the job "was good for a new mother."

The company defended the case on the basis of solid documentation of her shortcomings and deficiencies in performance reviews. Based on this evidence, the judge sided with the company.

In conclusion, speak to a lawyer whenever you believe that your pregnancy is being used as an excuse for downgrading your performance rating or removing you from the fast track for promotions. Employers must demonstrate legitimate business reasons for all decisions impacting you. This includes.findlaw a scrutiny of your performance. When the company promotes a nonpregnant employee over you but cannot demonstrate the other person's superior qualifications, educational background, or accomplishments, speak to em-ployment lawyer immediately. This is also true when you experience insensitive remarks, are not given the opportunity to make your own decisions regarding hazardous jobs, or believe that you have not been dealt with in a consistent even-handed way compared to nonpregnant workers at the company.

(Final Note: A court recently ruled that a company medical benefit plan that specifically excluded infertility treatment for both men and women did not violate the ADA, PDA, and Title VII. The court held that infertility is strikingly different from pregnancy and childbirth. Furthermore, the court stated that there is no evidence that the infertility exclusion impacted female more than male employees.)