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

Abstract

Abstract In 2008, Congress enacted amendments to the Americans with Disabilities Act ("ADA") that expanded the ADA's definition of "disability," requiring employers to provide reasonable accommodations to workers with temporary impairments. This Article argues that the expansion of the protections of the ADA effectively expanded the protections of the Pregnancy Discrimination Act ("PDA"), too. As the Supreme Court recently reinforced in Young v. United Parcel Service, the PDA generally requires employers to treat pregnant workers "the same" as non-pregnant workers who are similar in their ability or inability to work. Therefore, to the extent that pregnancy-related impairments mirror impairments that are accommodated under the 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 the case that these workers can, and should, be compared. First, I argue that PDA precedent requiring employers to treat pregnant workers the same as other impaired workers, as well as the legislative history of the 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 the unique intersectional nature of pregnancy, and would invite stereotyping, segregation, and discrimination. In conclusion, I note that the Supreme Court signaled in Young that courts should take a more expansive view of the types of evidence that can support a PDA claim, opening the door to a broader approach to the comparator question. INTRODUCTION In the last two decades, the United States has seen an explosion in pregnancy discrimination claims. The number of pregnancy-related charges filed with the EEOC nearly doubled from 1992 to 2010,' even though the number of antidiscrimination cases as a whole has declined every year since 1998. (2) Congress enacted the PDA in 1978 to clarify that pregnancy discrimination constituted prohibited discrimination on the basis of sex under Title VII. (3) Yet the prevailing interpretation of the 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 the job, (7) and have been denied light duty assignments despite doctor-ordered heavy-lifting restrictions. (8) The difficulties facing pregnant women (9) on the job have increasingly gained the attention of the EEOC, (10) the media, (11) legal scholars, (12) advocacy organizations, (13) and, most recently, the Supreme Court of the United States. (14) On March 25, 2015, the Supreme Court clarified the meaning of the 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 the PDA that has the potential to reinvigorate the Act's protections. It presented a challenge, however, because it reinforced the primacy of the McDonnell Douglas burden-shifting framework as the 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 the ability to identify a "comparator"--a similarly situated non-pregnant worker who was treated better. (17) Workers seeking accommodations for the temporary impairments that can arise out of pregnancy have been hard-pressed to find comparators because the law has not required employers to provide accommodations to workers with temporary, non-pregnancy-related impairments, either, especially when the source of the impairment is unrelated to the worker's job. …