Pregnant Workers Are Sometimes Forced to Choose Between a Job and Their Health

In 2007 Heather Myers was seven months pregnant when she was working as a Walmart floor associate, stocking shelves and cleaning aisles for minimum wage.

When she was told she could no longer carry anything to drink in the cart she pushed around all day, she brought two separate letters from her doctor, saying that she was at risk for urinary tract infections and needed to keep hydrated. Her request was twice denied, she said. “I decided to listen to my doctor rather than my manager,” Myers recalled. She was then told, “either the water bottle has to go or you have to go.”

Myers decided to leave, making her one of the many workers who are fired or forced to take unpaid leave after asking for basic accommodations during their pregnancy.

The legality of this situation is an unexpectedly complicated question raised in a recent report by the National Women's Law Center (NWLC) and A Better Balance (ABB). Both are advocates for strengthening the protections they allege are ignored by the existing law.

Discrimination of Pregnant Workers Under Americans with Disabilities Act

“We think the law is clear,” said Emily Martin, NWLC's vice-president and general counsel. “But since there are unfortunately still a lot of employers out there who believe, or at least assert, that you don't have to accommodate limitations arising out of pregnancy even if you accommodate the same limitation when it rises out of injury, then we need to make it clearer.”

The “misunderstanding,” she said, is based in the fact that pregnancy is not itself a disability under the Americans with Disabilities Act. “That's as it should be,” she said. “Pregnancy is NOT a disability – it's healthy and normal.” According to Martin, for the first 35 years under the ADA, pregnant workers were therefore not explicitly protected. In 2008 that act was expanded to include temporary disabilities.

“You have always had to treat pregnancy the way you treat temporary disability,” Martin argues, “and since the way you treat temporary disability has changed, the way you treat pregnancy has to change.”

The haphazardness with which pregnancy accommodations are and are not granted by employers means the law needs to be clarified. Legislation is currently being considered before committees in both the House and Senate. If passed, it would amend federal employment law to explicitly state that “limitations arising out of pregnancy should be accommodated unless it causes undue hardship” to an employer.

Peter K. Levine A Professional Law Corporation http://www.employmentforall.org/