Parity by Comparison: The Case for Comparing Pregnant and Disabled Workers

Abstract

Abstract In 2008, Congress enacted amendments to Americans with Disabilities Act (ADA) that expanded ADA's definition of disability, requiring employers to provide reasonable accommodations to workers with temporary impairments. This Article argues that expansion of protections of ADA effectively expanded protections of Pregnancy Discrimination Act (PDA), too. As Supreme Court recently reinforced in Young v. United Parcel Service, PDA generally requires employers to treat pregnant workers the as non-pregnant workers who are similar in their ability or inability to work. Therefore, to extent that pregnancy-related impairments mirror impairments that are accommodated under expanded ADA, pregnant workers, too, should be entitled to reasonable accommodations. Although some scholars and courts have suggested that ADA-covered employees cannot be proper comparators for PDA plaintiffs, I make case that these workers can, and should, be compared. First, I argue that PDA precedent requiring employers to treat pregnant workers same as other impaired workers, as well as legislative history of PDA, compel this comparison. Second, I draw on two theoretical approaches-intersectionality theory and disruption theory--to demonstrate that denying ADA comparators to PDA plaintiffs ignores unique intersectional nature of pregnancy, and would invite stereotyping, segregation, and discrimination. In conclusion, I note that Supreme Court signaled in Young that courts should take a more expansive view of types of evidence that can support a PDA claim, opening door to a broader approach to comparator question. INTRODUCTION In last two decades, United States has seen an explosion in pregnancy discrimination claims. The number of pregnancy-related charges filed with EEOC nearly doubled from 1992 to 2010,' even though number of antidiscrimination cases as a whole has declined every year since 1998. (2) Congress enacted PDA in 1978 to clarify that pregnancy discrimination constituted prohibited discrimination on basis of sex under Title VII. (3) Yet prevailing interpretation of PDA has made it difficult for plaintiffs to establish a successful claim. (4) Moreover, many pregnant workers could work later into their pregnancies if their employers made even simple accommodations--but these accommodations are not currently required by law. (5) Pregnant employees have lost their jobs for reasons directly related to their pregnancies. For example, pregnant workers have been fired for needing extra bathroom breaks (6) or to drink water on job, (7) and have been denied light duty assignments despite doctor-ordered heavy-lifting restrictions. (8) The difficulties facing pregnant women (9) on job have increasingly gained attention of EEOC, (10) media, (11) legal scholars, (12) advocacy organizations, (13) and, most recently, Supreme Court of United States. (14) On March 25, 2015, Supreme Court clarified meaning of PDA in Young v. United Parcel Service, (15) handing pregnant workers both a victory and a challenge. Young was a victory for pregnant employees because it announced an interpretation of PDA that has potential to reinvigorate Act's protections. It presented a challenge, however, because it reinforced primacy of McDonnell Douglas burden-shifting framework as method for proving most pregnancy discrimination claims. (16) Historically, pregnancy discrimination plaintiffs have found it difficult to prove their cases under McDonnell Douglas because success through that framework almost always depends on ability to identify a comparator--a similarly situated non-pregnant worker who was treated better. (17) Workers seeking accommodations for temporary impairments that can arise out of pregnancy have been hard-pressed to find comparators because law has not required employers to provide accommodations to workers with temporary, non-pregnancy-related impairments, either, especially when source of impairment is unrelated to worker's job. …