By Leila A. McNeill
Back in December when I was re-enrolling in my employer’s health insurance plan, I noticed something that gave me pause. If I were to become pregnant, I could claim the pregnancy as a temporary disability under the Amended Americans with Disabilities Act. I had seen this before when I enrolled the first time, and my workplace certainly isn’t the only one to cover pregnancy this way. This was, however, the first time I took notice. I wanted to know why, with decades of expanding rights for women in the workplace behind us, pregnant women in 2016 have to borrow from another protected class’ legislation to avoid discrimination. So began a search for an unsatisfying answer among a quagmire of research and hundreds of pages of case law.
The Civil Rights Act of 1964 was the first major piece of legislation that granted women and other disenfranchised groups rights in the workplace. Under Title VII, employers are prohibited from discriminating against employees on the basis of sex, race, color, religion, and national origin. However, the 1976 Supreme Court case General Electric Co. v. Gilbert revealed one of the ways that Title VII wasn’t enough to secure women’s employment. In General Electric’s Salem, VA. plant, pregnant employees claimed sex discrimination on the grounds that pregnancy was excluded from GE’s disability plan, the Weekly Sickness and Accident Insurance Plan, which was extended to all employees, male and female. SCOTUS upheld that employers could legally deny pregnancy coverage from health insurance and benefits plans without violating the Civil Rights Act. As discordant as it sounds, employers could effectively fire a woman or deny her benefits because she was pregnant and still comply with Title VII. Women and feminists found themselves caught between a rock and a hard place; they could either claim equality with men by denying their reproductive body or admit sex difference to claim pregnancy benefits and workplace accommodations that would not be applicable to male-bodied employees.
In response to General Electric Co. v. Gilbert, Congress passed a federal statute called the Pregnancy Discrimination Act (PDA) in 1978. The PDA amended the sex discrimination portion of Title VII of the Civil Rights Act to account for pregnancy, childbirth, or related medical conditions and benefits coverage. However, the PDA provides woefully limited protections for pregnant women who need on the job accommodations, like more bathroom breaks or lighter lifting duties for physically demanding positions. Women who are not granted such accommodations from their employer could be accused of not fulfilling their job duties, which leaves them subject to the same at-will employment as any other employee. To file discrimination under the PDA, a woman would have to prove disparate treatment. In other words, she would have to prove that she was subjected to negative treatment because of her sex by comparing her treatment to that of another non-pregnant employee who also needed and received workplace accommodations--for example, someone who is temporarily disabled. Finding someone in one’s own workplace with a comparable situation is not an easy task and not always possible. And according to attorney Sheerine Alemzadeh, courts have historically been reticent to apply disparate treatment analysis to PDA claims because they see it as a sneaky way for pregnant workers to gain preferential treatment.
Next came the Family and Medical Leave Act (FMLA) of 1993, which is about as useful to pregnant women as a gifted box of super absorbent tampons. The FMLA is job-protected leave that provides 12 weeks unpaid leave for qualified medical and family reasons, including pregnancy. FMLA is useless for a couple of reasons. For one, it only covers workplaces with 50 or more employees, so small staff workplaces are not included at all. And the most important reason--it is unpaid. Protections effectively exclude women with poverty line and low-income status because they can’t afford to forgo a paycheck for 12 weeks. FMLA disproportionately fails women of color, immigrants, and women who live in rural areas. Avoiding discrimination as a female-bodied pregnant employee is like a choose your own adventure story, except instead of an adventure, you must wander a confusing labyrinth of legislation and litigation where all paths lead to unemployment.
All this brings us to the Amended Americans with Disability Act (AADA) of 2008, which provides protections for pregnant workers where previous legislation has failed. Before the act was amended in 2008, the original Americans with Disability Act (ADA) did not include pregnant workers because disability was defined as a medical condition that exists in the body; since courts and employers perceived pregnancy as a “normal” biological function of a “healthy” female body, pregnancy did not fall within the scope of the ADA. The AADA, however, defines disability differently, reflecting a more progressive way of understanding disability. Under the new AADA, disability is defined through an interaction between an individual’s body and their social environment. In other words, the disabled body is not inherently sick and in need of treatment; the body is only disabled because it must move through an environment constructed by and for able-bodied people. With this amended definition, pregnancy could be understood as a temporary disability, and as such, an employer would be required to provide accommodations and make adjustments to the working environment of a pregnant employee as they would for an employee with a disability.
Feminists have been critical of adopting the AADA to protect pregnant workers because many believe that branding the reproductive body as inherently disabled only hurts women. Legal scholars, on the other hand, argue that this is the best option for pregnant employees as it provides more comprehensive protections for accommodations and leave. I’d like to push back against both of these arguments. For feminists to recoil at the category of disability is to send the message that feminism is not for people with disabilities. But for legal scholars and courts to insist that disability rights is the best possible solution for pregnant workers, is to take something away from people who perceive disability to be an identity and a community. Using disability and restructuring it in legal terms to include other groups only stifles the work that disability activists have been doing tirelessly for decades.
What we have are two identity groups grappling for rights in a labor and economic system that wasn’t intended for them. In the history of labor in the modern Western world, bodies are the at the center of the capitalist machine, and only the bodies that can achieve production in the labor market are deemed useful. As the workplace became increasingly more mechanized in the 19th and 20th centuries, a disabled body became a faulty cog in the machine, and faulty cogs must be replaced. A pregnant body that cannot lift a certain amount of weight, that cannot move as quickly as others, that requires access to a bathroom, only holds up the line of production. Ability and gender then became the underlying criteria that determined a useful body from a dispensable one. The white able-bodied male became the model of the ideal body against which everything else is judged. That we have to continue to paperclip amendments and federal statutes to our constitution to protect everyone but white able-bodied men attests to this. A labor system that requires laws and legislation to protect the people within it from the system itself is the underlying problem. Restructuring the definitions of disability and pregnancy is certainly important to prompt cultural change. However, protecting people with disabilities and female-bodied employees of all races and socio-economic class in the workplace will require a radical rethink of an economic structure and labor market that was never designed to account for human difference.
Susan Burch and Lindsey Patterson, “Not Just Any Body,” Journal of Women’s History 25, no. 4 (2013): 122-137.
Sheerine Alamzedah, “Claiming Disability, Reclaiming Pregnancy,” Wisconsin Journal of Law, Gender, and Society 20 (2012): 1-35.