Pregnancy as "Disability" and the Amended Americans with Disabilities Act

IntroductionOver a decade ago, Samuel Bagenstos observed that disability law's potential application to pregnancy "raises an exceptionally interesting theoretical question that requires much further study."1 Despite the passage of time, however, this Article is the first to respond to Bagenstos's call to question the conventional assumption that the healthy nature of pregnancy prevents pregnant workers from obtaining accommodations under the Americans with Disabilities Act of 1990 (ADA).2 One explanation for scholars' silence is that the accommodation of many workers' post-pregnancy needs under the Family and Medical Leave Act of 1993 (FMLA) has obscured the ongoing need for accommodations during pregnancy.3 Another explanation is the fact that shortly after Bagenstos suggested that disability law might encompass pregnancy, the U.S. Supreme Court began to restrict disability law's scope to include only the most severe and long-term physical limitations.4 These decisions foreclosed ADA coverage for the inherently short-term and modest limitations that accompany a healthy pregnancy.5The recently enacted ADA Amendments Act of 2008 (ADAAA) dramatically expanded the ADA's scope, however, and thereby significantly strengthened the analogy between persons covered by the ADA and pregnant workers who need workplace accommodations.6 For example, the new Equal Employment Opportunity Commission (EEOC) regulations implementing the ADAAA provide that a person with a back injury that, for a span of two to three months, "prevents him or her from lifting more than fifty pounds and, consequently, from performing not only his or her existing job but also other jobs that would similarly require heavy lifting" has an ADA disability.7 This example, which appears analogous to the work-related difficulties pregnant women may experience, suggests that the fact that pregnancy imposes inherently short-term and modest limitations no longer justifies pregnancy's exclusion from the .ADA's scope.8 Instead, the primary remaining barrier to ADA pregnancy coverage is the assumption that the ADA only encompasses medically diagnosed disorders.9Prior to the ADAAA, although the judicially imposed severity and long-term duration requirements were sufficient to deny pregnant workers ADA coverage, courts also frequently stated, as an alternate rationale, that pregnancy is "the natural consequence of a properly functioning reproductive system"10 and that there accordingly "is no negative effect when a woman becomes pregnant."11 Because courts considered physiological defect a prerequisite for disability accommodations, they routinely held that although infertility-a condition far less likely than pregnancy to conflict with an employer's work expecta tions-falls within the ADA's scope, physical limitations resulting from a healthy pregnancy do not.12Courts grounded this conclusion in the ADA's textual requirement of a "physical or mental impairment"13 and the EEOC's position that "[b]ecause pregnancy is not the result of a physiological disorder, it is not an impairment" and therefore cannot be a disability.14 Drawing on the EEOC's position, one court further reasoned that "[i]f pregnancy itself is not an impairment for purposes of the ADA, it is counterintuitive to hold that a general condition of pregnancy [such as a need to curtail repetitive heavy lifting] is an impairment."15 Accordingly, although many pre-ADAAA courts acknowledged that the ADA covers medically diagnosed disorders that can accompany pregnancy, such as gestational diabetes,16 courts consistently denied ADA coverage to women who experienced more typical pregnancy-related physical limitations, such as severe headaches, dizziness, vomiting, extreme fatigue, and the need to curtail repetitive heavy lifting and exposure to hazardous chemicals.17 They reasoned that the .ADA does not require employers to accommodate pregnant employees with these physical limitations because "all of these symptoms, at some degree of severity, are part and parcel of a normal pregnancy. …