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Joan C. Williams's picture

In a snarky article, the newspaper of record confirms what we already know: Kate Middleton is pregnant. She's so nauseated that she's in the hospital on an intravenous drip.

She's just lucky she's not an American gal. U.S. employers regularly fire pregnant women when they need modest accommodations to keep doing their jobs. When women become pregnant in America, they face a strong possibility that their employers will fire them rather than permit more frequent bathroom breaksplace them on light dutychange their shifts, or allow them to work in departments that are "always looking for help." Some employers even have policies requiring pregnant women to take medical leave immediately if they present a doctor's note saying that their pregnancy limits them in any way that might affect their work.

Courts go into contortions to allow employers to fire these folks. My favorite case is one in which a bankrupt employer could keep only three of its four secretaries. It decided to fire the one who was pregnant because she was pregnant. No problema, said the court. The Pregnancy Discrimination Act prohibits discrimination based on pregnancy but....she wasn't fired because she was pregnant. She was fired because she was absent (on pregnancy leave). Just makes sense to fire the employee who wasn't there. Don't you agree?

Here's the vibe I get from the cases. In the 1970s, when it became illegal under federal law to refuse to hire blacks, some employers responded by requiring factory workers to have a high school degree - thereby efficiently making most blacks ineligible. Today, in blue-collar jobs, my sense is that some employers say grudgingly, "we have to hire these girls, but then again we can just wait until they get pregnant--then we can get rid of them." Why else would an employer agree to accommodate a man who was injured when he fell off his mother's porch while trying to fix it, or two police officers whose non-work-related leg injuries prevented them from chasing criminals, but not a pregnant woman who was asking for light duty, a transfer to an open position, a shift change, or just the ability to take a few more bathroom breaks?

The answer is obvious. And the problem is not only employers. It's also federal judges. An EEOC attorney was litigating a pregnancy discrimination case on behalf of a cashier at a retail store and was in conference with the judge. "Oh, is this the case of the pregnant girl who should be staying home with her children?" the judge asked. "No, "she replied, "this is the case of the pregnant woman who is living in an un-air-conditioned trailer because she has no income." She won the case in front of a jury, but puhhleease.

That's why we need the Pregnant Workers' Fairness Act, which would mandate accommodations for pregnant workers unless "the accommodation would impose an undue hardship on the operation of the business."

But we all know that will take some time. In the meantime, it's my belief many pregnant women are currently entitled to accommodation under existing law. Not everyone. But a lot, perhaps most, pregnant women.

Their rights derive from a combination of two federal laws. The first is Title VII, the basic federal law that prohibits gender discrimination. The way plaintiffs' attorneys typically litigate those cases is to find a similarly situated man who has been treated differently ( a "comparator")--this comparison is submitted to prove that the plaintiff's unfair treatment was motivated by sex discrimination. The 2008 Amendments to the American with Disabilities Act (called the "ADAAA") means that today far more people are covered. This means that, in a given workplace in which a pregnant worker might have a lifting restriction, the plaintiff is far more likely to be able to point to another worker who has a lifting restriction and say, "Hey, that man was given this accommodation, so not giving it to me is motivated by sex discrimination."

Of course, this theory is limited, because most courts will require a plaintiff to point to a specific man in that workplace who required the same accommodation being requested by the plaintiff. Often there will be no such man. That's why the other legal theory is even more important.

Pregnant workers, in my view, are often entitled to accommodations directly under the ADAAA. "Wait a minute," say you, "pregnancy is not a disability!" And, for many women, it isn't. Take my mother. My mother sailed through pregnancy without any major symptoms other than feeling like an elephant as she approached delivery.

I was not so lucky. Like Kate, I had morning sickness--which, by the way, begins in the morning and lasts all day. And I was so exhausted that I literally put a sign on my door and slept for two hours in the middle of the day, both because I was spent, and because that was the only way not to throw up all the time. This is when I got interested in the plight of mothers. I was a tenured professor at the time--had I had a real job, I would have been summarily fired.

Pregnancy is not, by itself, a disability, but many pregnant women have limitations because their condition produces the same symptoms that many other conditions produce--symptoms that give rise to the need for accommodation. So Kathy is vomiting over here; David is vomiting due to chemotherapy over there. Each needs the same accommodation. Here is Tyla with pregnancy-related carpal tunnel; there is Bruce with carpal tunnel. Each needs the same accommodation. Here is Jamal who needs an accommodation due to hyper-tension--an accommodation that's precisely the same as the one Maria needs because of her pregnancy-related hyper-tension.

Are you going to tell me that David, Bruce, and Jamal are entitled to accommodations but that the ladies are not? Is it possible that workers are entitled to accommodations for nausea, carpal tunnel, and hyper-tension so long as those conditions are due to any reason in the world other than pregnancy but that pregnant women with the same symptoms, requiring the same accommodations, are not entitled to accommodation?

Not possible. First of all, it doesn't make a lick of sense. Second, the Pregnancy Discrimination Act requires that all women workers "affected by pregnancy, childbirth, or related medical treated the same for all employment-related purposes... as other persons not so affected but similar in their ability or inability to work."

Now if Kathy needed bed rest for four months, she would not necessarily be entitled to accommodation--it depends on her job. If she can telecommute and do her job, she's entitled. If she's a check-out clerk, she may not be. It depends on whether accommodating her is an undue burden on the employer. And that makes sense, doesn't it? The law balances the rights of the employer with those of the worker. To me--that just seems civilized.

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