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6th Circuit’s surprise call: Pregnancy ‘impairments’ are disabilities

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in Discrimination and Harassment,Employment Law,Human Resources

The ADA expressly excludes pregnancy as a disability. The law says so, and I’ve always believed it to be true.

But now a new decision has turned that notion on its head—and that may mean you’ll have to make some changes to your policies.

Ohio Employment Law covered this case last month in “Don’t let stereotypes dictate pregnancy policies.” Now we bring you more details.

Pregnant, worried, then fired

Heather Spees was a welder-trainee for James Marine. Shortly after being hired, she learned she was pregnant. A prior pregnancy had ended in a miscarriage. Concerned, Spees talked to her brother, who was a foreman at James Marine. She also spoke with her own foreman and her obstetrician, who originally cleared her for work without restrictions.

Spees’ foreman, however, told her to revisit her doctor and get a note calling for light duty. Then he assigned her to the tool room away from her welding duties, telling her, “For right now, we don’t know what to do with you.”

Apparently, Spees’ brother and foreman concluded that the risks associated with welding were too dangerous for the pregnant Spees.

When another doctor later ordered Spees to full bed rest, James Marine terminated her for excessive absences. According to Spees, her brother told her that she was “being fired for being pregnant.”

Not part of ‘normal’ pregnancy

After Spees lost an initial lawsuit, she appealed. The 6th Circuit resurrected her “regarded as disabled” ADA claim. The appeals court recognized that pregnancy, in and of itself, doesn’t qualify as a disability, but concluded that pregnancy-related conditions that are not part of a “normal” pregnancy—such as susceptibility to miscarriage—can qualify as impairments under the ADA:

“Our first step in evaluating Spees’ ADA claim is to determine whether her prior miscarriage, or a potentially higher risk of having a future miscarriage, could constitute an impairment. Whereas no court has held that pregnancy by itself is an impairment under the ADA, many district courts have held that pregnancy-related conditions can qualify as such….

“Pregnancy-related conditions have typically been found to be impairments where they are not part of a “normal” pregnancy…. Susceptibility to a miscarriage, moreover, has been deemed by some courts to be such a condition….

“Although other courts have held that pregnancy complications related to miscarriages are not disabilities, the analysis in those cases did not hinge on the question of whether there was an impairment, but rather on whether the condition was sufficiently severe to substantially limit a major life activity…. There thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy.”

See no evil, hear no evil

The 6th Circuit appears to be breaking new ground with its decision, expanding employees’ rights under federal discrimination laws.

This case ups the ante for employers dealing with pregnant employees. Now, more than ever, employers should adopt, as best as possible, a “see no evil, hear no evil” approach in dealing with pregnant employees.

The goal: Avoid any knowledge of possible pregnancy-related complications or conditions.

The right call?

But, did the 6th Circuit get this decision right? Spees made a “regarded as disabled” claim. She claimed her employer transferred her away from her welding duties because it perceived her at risk due to her history of miscarriages.

Yet, the ADA states that one cannot premise a “regarded as” claim on “impairments that are transitory and minor”—that is, impairments “with an actual or expected duration of six months or less.”

Pregnancy is a transitory condition. Most pregnancy-related impairments—ectopic pregnancy, preeclampsia, miscarriage, gestational diabetes, placenta previa—only occur during a portion of the pregnancy. Moreover, in most cases, childbirth cures these impairments. In other words, by their very nature, pregnancy-related impairments are transitory, and should not be covered by ADA.

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