Parity by comparison: the case for comparing pregnant and disabled workers.

• Author: Simon, Eliza H.

Abstract

In 2008, Congress enacted amendments to the Americans with Disabilities Act ("ADA") that expanded the ADA's definition of "disability," requiring employers to provide reasonable accommodations to workers with temporary impairments. This Article argues that the expansion of the protections of the ADA effectively expanded the protections of the Pregnancy Discrimination Act ("PDA"), too. As the Supreme Court recently reinforced in Young v. United Parcel Service, the PDA generally requires employers to treat pregnant workers "the same" as non-pregnant workers who are similar in their ability or inability to work. Therefore, to the extent that pregnancy-related impairments mirror impairments that are accommodated under the expanded ADA, pregnant workers, too, should be entitled to reasonable accommodations.

Although some scholars and courts have suggested that ADA-covered employees cannot be proper comparators for PDA plaintiffs, I make the case that these workers can, and should, be compared. First, I argue that PDA precedent requiring employers to treat pregnant workers the same as other impaired workers, as well as the legislative history of the PDA, compel this comparison. Second, I draw on two theoretical approaches-intersectionality theory and "disruption" theory--to demonstrate that denying ADA comparators to PDA plaintiffs ignores the unique intersectional nature of pregnancy, and would invite stereotyping, segregation, and discrimination. In conclusion, I note that the Supreme Court signaled in Young that courts should take a more expansive view of the types of evidence that can support a PDA claim, opening the door to a broader approach to the comparator question.

INTRODUCTION

In the last two decades, the United States has seen an explosion in pregnancy discrimination claims. The number of pregnancy-related charges filed with the EEOC nearly doubled from 1992 to 2010,' even though the number of antidiscrimination cases as a whole has declined every year since 1998. (2) Congress enacted the PDA in 1978 to clarify that pregnancy discrimination constituted prohibited discrimination on the basis of sex under Title VII. (3) Yet the prevailing interpretation of the PDA has made it difficult for plaintiffs to establish a successful claim. (4) Moreover, many pregnant workers could work later into their pregnancies if their employers made even simple accommodations--but these accommodations are not currently required by law. (5)

Pregnant employees have lost their jobs for reasons directly related to their pregnancies. For example, pregnant workers have been fired for needing extra bathroom breaks (6) or to drink water on the job, (7) and have been denied light duty assignments despite doctor-ordered heavy-lifting restrictions. (8) The difficulties facing pregnant women (9) on the job have increasingly gained the attention of the EEOC, (10) the media, (11) legal scholars, (12) advocacy organizations, (13) and, most recently, the Supreme Court of the United States. (14)

On March 25, 2015, the Supreme Court clarified the meaning of the PDA in Young v. United Parcel Service, (15) handing pregnant workers both a victory and a challenge. Young was a victory for pregnant employees because it announced an interpretation of the PDA that has the potential to reinvigorate the Act's protections. It presented a challenge,

however, because it reinforced the primacy of the McDonnell Douglas burden-shifting framework as the method for proving most pregnancy discrimination claims. (16) Historically, pregnancy discrimination plaintiffs have found it difficult to prove their cases under McDonnell Douglas because success through that framework almost always depends on the ability to identify a "comparator"--a similarly situated non-pregnant worker who was treated better. (17) Workers seeking accommodations for the temporary impairments that can arise out of pregnancy have been hard-pressed to find comparators because the law has not required employers to provide accommodations to workers with temporary, non-pregnancy-related impairments, either, especially when the source of the impairment is unrelated to the worker's job. Yet in the wake of Young, it appears that the availability of adequate comparators for PDA plaintiffs is more important than ever before.

This Article argues that a new day has dawned for pregnancy discrimination claims thanks to the 2008 Americans with Disabilities Act Amendments Act ("ADAAA"). (18) The ADAAA expanded the definition of "disability" under the ADA to include temporary impairments similar to the ones that sometimes accompany pregnancy. (19) Notably, pregnancy itself did not gain coverage under the employment provisions of the ADA through the ADAAA, (20) and it is not considered a disability by the courts or the EEOC. (21) But, as this Article shows, the ADA's expanded definition of "disability" provides PDA plaintiffs with a new pool of potential comparators: temporarily impaired workers receiving reasonable accommodations under the ADA. In other words, thanks to the ADA, PDA plaintiffs should be more likely to receive workplace accommodations because they can now point to workers with temporary impairments who receive accommodations under the ADA as comparators. (22) Indeed, the Supreme Court itself acknowledged this possibility in Young, although the Court did not consider it further because the facts of that case predated the AD AAA. (23)

Although the ADAAA was enacted in 2008, it does not appear that any court has permitted a PDA plaintiff to use an ADA-covered colleague as a comparator to date. (24) In addition, some courts and theorists have questioned whether ADA-covered employees can properly serve as comparators for PDA plaintiffs at all. (25) Essentially, their argument goes, workers who receive accommodations mandated by a federal statute are inherently dissimilar from, and therefore not comparable to, workers who do not. The most egregious example of this reasoning was found in the Fourth Circuit's opinion in the Young case--now vacated by the Supreme Court--which did not consider the impact of the ADAAA. (26) Still, it is not yet clearly established that temporarily disabled workers covered by the ADA may serve as comparators for PDA plaintiffs.

This Article draws on existing case law, including Young, legislative history, and employment discrimination law theories to make the case in favor of the use of ADA comparators in PDA cases. No scholar has addressed this question in depth or considered it in the context of the Supreme Court's opinion in Young, (27) Thus, this Article is the first to closely examine the availability of ADA-covered employees as comparators for PDA plaintiffs under current law.

Part I provides the social and legal context for the claim that the ADAAA has effectively expanded the PDA by enlarging the pool of available comparators. It begins by detailing the serious problems pregnant workers face and the ways employment discrimination law has failed them. Then, I explore the PDA, the Young opinion, the amended ADA, and the comparator issue in greater depth.

Part II shows that the use of ADA comparators in PDA cases finds support in the weight of PD A precedent, as well as the legislative history of the PDA. Indeed, as I will discuss, to prohibit the use of ADA comparators would defy the logic of the most prominent pre-Young PDA cases, which rest on the principle that the PDA does not require employers to treat impaired pregnant workers any differently than similarly-impaired non-pregnant workers. But if the ADAAA now requires employers to accommodate many more impaired nonpregnant workers, failing to accommodate similarly impaired pregnant workers would constitute treating them worse than their colleagues.

Part III will draw on theoretical approaches that highlight the dangers of oversimplifying and reinforcing identity differences. First, I discuss intersectionality theory, (28) and I argue that Title VII has failed pregnant workers in part because courts have not recognized that pregnancy discrimination is the product of the unique interaction between stereotypes about women, stereotypes about pregnancy, and the reality that pregnancy can sometimes cause impairments. For this reason, comparisons between pregnant and temporarily disabled workers are not only appropriate, but also necessary to fully address pregnancy discrimination.

Second, I engage with an emerging theoretical approach that views discrimination as part of a process of creating "difference" that operates by singling out certain groups for differential treatment. Scholars like Noah Zatz, Richard Thompson Ford, and especially Vicki Schultz argue that antidiscrimination law should target workplace practices that create these differences because creating difference leads to segregation and stereotyping. This new approach suggests that treating pregnant workers differently than other workers with similar impairments will undermine the purposes of the PDA by allowing employers and coworkers to marginalize pregnant women, thus promoting segregation, stereotyping, and discrimination.

1. Pregnancy, Disability, and Work

   1. Pregnancy Discrimination Claims on the Rise

      The Pregnancy Discrimination Act of 1978 established two important principles: first, that pregnancy discrimination constitutes discrimination "because of sex" in violation of Title VII; (29) and, second, that employers must generally treat pregnant workers "the same" as similarly impaired non-pregnant workers. (30) Despite the enactment of the PDA more than three decades ago, however, the number of pregnancy discrimination charges filed with the EEOC has nearly doubled in the past twenty years. (31) The cause of this uptick in filings is not entirely clear, but likely factors include the increased number of working mothers, the greater attention to pregnancy discrimination and work-life issues in the media, and the Civil...