Normal pregnancies are not considered a “disability” under Title I of the Americans with Disabilities Act of 1990 However, pregnancy may also cause a woman to suffer from an assortment of conditions, such as morning sickness, back pain, carpel tunnel syndrome, severe fatigue, conditions that lead to lifting restrictions, gestational diabetes, hypertension, preeclampsia and prenatal depression.
If pregnancy-related conditions meet the ADA’s definition of “disability,” they may need to be accommodated by employers. (42 U.S.C. §12112(b)(5)(A)).The accommodations which arise most often are leave of absence, part-time or modified schedules, working from home, job restructuring, “light duty” and reassignment.
A plaintiff seeking to prevail on a failure to accommodate claim must show that (1) she was an individual with a “disability” as defined by the ADA; (2) her employer had notice of her disability; (3) she could perform her job’s essential functions with reasonable accommodation; and (4) her employer refused to provide a reasonable accommodation. Litigation in such cases focuses almost exclusively on whether the plaintiff’s condition meets the definition of “disability.”
Before the ADA Amendments Act of 2009 (ADAAA), plaintiffs seldom prevailed because they could not show that their conditions met the ADA’s stringent definition of “disability” for three primary reasons.
First, the Equal Employment Opportunity Commission (EEOC) and courts held that only permanent or long-term impairments could be substantially limiting. Therefore pregnancy-related conditions were considered too short in duration to qualify as “disabilities.” For example, in Villareal v. JE Merit Contractors, 895 F.Supp. 194 (S.D. Tex. 1995) the district court held that pregnancy and related medical conditions are temporary and, therefore, not usually disabilities.
Second, before the ADAAA, pregnancy-related conditions were often found not to be severe enough to “substantially limit” a “major life activity.” In Jevdy v. Holder, 2011 U.S. Dist. LEXIS (S.D. Fla. 2011), the district court held that a probationary corrections officer who had severe morning sickness and severe pelvic pain due to fibroids in her uterus while pregnant failed to show that those conditions substantially limited her ability to walk or stand.
Third, under the “normal pregnancy doctrine,” courts routinely held that, because pregnancy is not a disorder, pregnancy-related conditions are only covered under the ADA in extremely rare circumstances. For example, in Gorman v. Wells Mfg. Co., 209 F.Supp. 2d 970 (S.D. Iowa 2002), the district court held that nausea, vomiting, dizziness, severe headaches and fatigue were not disabilities because it was “common knowledge that all of these symptoms, at some degree of severity, are part and parcel of a normal pregnancy.”
Due to the ADAAA’s broadened definition of “disability,” many pregnancy-related conditions may now be considered an “actual disability” under the ADA’s three-prong definition. The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment, or (3) being “regarded as” having such an impairment. (42 U.S.C. §12102(2)). Several critical changes made to the definition of disability have removed the barriers which led courts to routinely hold that pregnancy-related conditions were not disabilities.
Under the ADAAA, the short duration of an impairment no longer precludes the impairment from being considered a disability. The EEOC’s regulations under the ADAAA provide that the “effects of an impairment lasting or expected to last fewer than six months can still be considered substantially limiting.”
In Nayak v. St. Vincent Hospital and Health Care Center Inc., 2013 WL 12183 (S.D. Ind. 2013), for example, the court relied on the EEOC’s Regulations to deny the employer’s motion to dismiss where the plaintiff suffered from pregnancy-related conditions which lasted about eight months, including beyond her pregnancy. In Mayorga v. Alorica, Inc., 2012 U.S. Dist. LEXIS 103766 (S.D. Fla. 2012), the court similarly relied upon the EEOC’s regulations and rejected the employer’s argument that the plaintiff’s pregnancy-related conditions were too short in duration to be considered a disability.
The ADAAA expanded the list of “major life activities” to include, among other activities, “performing manual tasks, … sleeping, eating, walking, standing, lifting, bending … breathing … concentrating, thinking and working.” Significantly for pregnancy-related cases, the definition of “major life activities” now includes the operation of a “major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, endocrine and reproductive functions.
Under the ADAAA, it will be easier to show that the impairment “substantially limits” a major life activity. The EEOC’s ADAAA regulations provide that “[a]n impairment need not prevent, or significantly or severely restrict the individual from performing a major life activity in order to be considered substantially limiting.”
As a result of the easing of the “substantially limits” standard, courts have refused to dismiss ADA cases filed by women with pregnancy-related impairments without scrutinizing whether the impairments were substantially limiting. E.g., Price v. UTi, United States Inc., 2013 U.S. Dist. LEXIS 30342 (E.D. Mo. 2013); Nayak v. St. Vincent Hospital and Health Care Center Inc., 2013 WL 121838, *3 (S.D. Ind. 2013)
Many of the cases involving pregnancy-related conditions decided prior to the ADAAA are no longer valid precedents for cases involving pregnancy-related conditions that arose after the ADAAA.
That was illustrated by the court in Nayak, which rejected the Seventh Circuit’s decision in Serednyj v. Beverly Healthcare LLC, 656 F. 3d 540 (7th Cir. 2012), which held that while spotting and cramping could be considered physiological disorders of the reproductive systems, they were not disabilities based on the pre-ADAAA durational requirement and did not substantially limit a major life activity. But the court in Nayak reasoned that the Serednyj case was not a valid precedent because it was “decided under the ADA, not the ADAAA.”
In Nayak, the plaintiff had morning sickness and required bed rest during her pregnancy with twins. While on bed rest, one of her two unborn fetuses died. After the birth of her other child, the plaintiff developed post-partum difficulties, including severe pelvic pain. The employer admitted it terminated the plaintiff due to her “medically complicated pregnancy.” However, the employer brought a motion to dismiss the plaintiff’s ADA claim and relied, in part, on two pre-ADAAA cases to argue that the plaintiff’s pregnancy-related conditions were temporary and, therefore, not a “disability.” The court rejected that argument and found the pre-ADAAA cases “unpersuasive” in light of the ADAAA’s “more lenient” standards.
In Price v. UTi, United States Inc., the court rejected pre-ADAAA case law and denied the employer’s summary judgment motion based on the ADAAA and the EEOC’s regulations. The plaintiff had a blood disorder which led to a history of high-risk pregnancies and four miscarriages. During her sixth month of her then-current pregnancy, her doctor diagnosed her with an open cervix and advised immediate bed rest to reduce the likelihood of another miscarriage. The court rejected the employer’s argument that the plaintiff had failed to show that she had a disability, reasoning that an impairment need not be permanent or long term, and a pregnancy-related complication may be a physiological disorder that affects the reproductive system.
The plaintiff in Mayorga v. Alorica Inc. 2012 U.S. Dist. LEXIS 103766 (S.D. Fla. 2012) had a high-risk pregnancy with complications including “premature uterine contractions, irritation of the uterus, increased heart rate, sever morning sickness, severe pelvic bone pain, severe back pain, severe lower abdominal pain, extreme headaches, and other pregnancy-related conditions.” The court rejected the defendant’s motion to dismiss, reasoning that a pregnancy-related condition could meet the definition of a “disability” if the condition caused an impairment “separate from the symptoms associated with a healthy pregnancy” or if the symptoms associated with a healthy pregnancy were “significantly” intensified.
Nevertheless, some courts have continued to apply pre-ADAAA standards and caselaw to dismiss pregnancy-related ADA claims. For example, in dismissing a pro se plaintiff’s claim that an employer failed to accommodate her pregnancy-related condition, the court in Sam-Sekur v. Whitmore Group Ltd. 2012 U.S. Dist. LEXIS 83586 (E.D.N.Y. 2012) acknowledged the ADAAA but relied on pre-ADAAA caselaw to conclude that “temporary impairments are not typically considered disabilities.” It elaborated that pregnancy-related conditions will only be covered under the ADA “in extremely rare cases.”
Echoing Sam-Sekur, a Commecticut district court dismissed the ADA claim filed in Wanaker v. Westport Board of Education, 899 F. Supp. 2d 193 (D. Conn. 2012), by a teacher who suffered severe complications during childbirth, including traverse myelitis and a spinal injury following childbirth. The court recognized that the ADAAA governed but relied on pre-ADAAA cases to hold that the alleged impairments were not disabilities under ADA because they lacked “proof of permanency.” (The plaintiff subsequently amended the complaint to allege that her pregnancy-related conditions substantially interfered with the major life activities of standing, walking and bowel functions. The defendant’s motion for summary judgment is pending before the court.)
Workers with normal pregnancies do not have a “disability” under the ADAAA. Nevertheless, due to ADAAA’s expansion of the definition of disability, the terrain has changed. Although the residue of the narrow pre-ADAAA decisions still percolates, the focus is shifting from whether the pregnancy-related condition is a disability to whether and how it can be accommodated.•
Gary Phelan is a shareholder at Mitchell & Sheahan in Stratford, where he represents employees and employers in labor and employment matters. Along with Cynthia Thomas Calvert and Joan Williams, he is co-authoring a legal treatise on Family Responsibilities Discrimination, which will be published by BNA/Bloomberg in 2014. He thanks Cynthia Thomas Calvert, of CT Calvert & Associates for her contribution to this article.