On December 3, the Supreme Court heard arguments in Young v. United Parcel Service, a case that asks if the Pregnancy Discrimination Act (PDA) entitles pregnant workers to receive the same accommodations as disabled workers.1 Already, the EEOC has issued Enforcement Guidance explaining that disabled pregnant workers are entitled to reasonable accommodations under the Americans with Disabilities Act (ADA).2 And in 2013, Congress considered and rejected the Pregnant Workers Fairness Act, a bill that would provide pregnant workers with accommodations based on pregnancy rather than disability.3

The Court, Congress, and the EEOC all ask: should we treat pregnant workers like disabled workers? Recent scholarship offers conflicting answers.

Jeannette Cox has argued that we should incorporate pregnancy into the social model of disability rights in order to transform workplaces into fully inclusive spaces.4 Cox claims that because Congress has now granted accommodations to workers with minor temporary disabilities in the Americans with Disabilities Act Amendment Act (ADAAA), feminists need not fear that equating pregnancy with disability will depict the exclusively female condition of pregnancy as defective.5

Joan Williams and her colleagues disagree.6 They argue that although pregnant workers with medical conditions should be accommodated for temporary and minor disabilities under the ADA (as amended by the ADAAA), pregnant workers with non-medical conditions such as the policewoman who seeks desk duty to avoid being hit in the womb should receive relief under the PDA.7 In such a case, if the police department grants desk duty for other non-medical reasons, such as desired rest for marathon training, it ought to grant the same accommodation under the PDA – but not under the ADA.8

Deborah Brake and Joanna Grossman concur with Williams and her colleagues.9 Pregnant workers, according to Brake and Grossman, should push for treatment that is neither discriminatory nor stereotyping under the PDA; in this way, they would be applying a sex equality lens.10 Brake and Grossman are disheartened by recent case law (including Young)that narrows the rights of pregnant women by ignoring the simple mandate to treat pregnant workers like workers with any other condition, medical or not.11 They believe that the ADA should remain a safe harbor for workers disabled by pregnancy, but that a true feminist, gender-conscious, and status-based account of pregnancy at work must include the PDA.12

Brake and Grossman derived their sex equality thesis, in part, from the work of Deborah Widiss, who argued that the legislative history of the PDA exhibits congressional intent to accommodate pregnant women, which was derived from principles of sex equality.13

Policymakers and academics will continue to grapple with the challenge of addressing pregnancy and disability accommodations in a way that provides protection for pregnant workers and promotes sex equality. Pregnancy could affect nearly half of the labor force, so courts, Congress and the agencies must determine howto grant accommodations with care.14

Preferred Citation: Claire Michelle Simonich, Roundup: Should We Treat Pregnant Workers Like Disabled Workers?, Yale L.J. (Dec. 3, 2014), http://www.yalelawjournal.org/forum/roundup-pregnant-workers.