A Sip of Cool Water: Pregnancy Accommodation after the ADA Amendments Act

Abstract

This Article explains how the changes effected by the ADAAA entitle women to a broad range of accommodations for their pregnancy-related conditions under federal law. Part I documents the historical obstacles faced by plaintiffs claiming a right to accommodation based on pregnancy. Part II begins by explaining the history and purpose of the ADAAA, and then shows how the ADAAA creates rights to accommodation in two distinct ways: (1) directly, under the ADA, when pregnant workers can prove pregnancy-related impairments (the “impairment theory”); and (2) indirectly, under the PDA, by expanding the group of similarly situated workers to whom the plaintiff can point to prove she was not treated the same as nonpregnant workers with the same ability of inability to work (the “comparator theory”). Part III looks at the six pregnancy cases decided under the ADAAA to date, which suggest that (after an initial period of confusion) courts have begun to recognize that the ADA now offers accommodations for many pregnant women. Part IV describes the relative benefits for plaintiffs of filing a claim under either the PDA or the ADA. Which cause of action will offer more protection depends on factors explored in this section. The Article concludes by providing some examples of pregnancy-related conditions and explaining how working women with those conditions are now entitled to accommodation under the ADAAA. This section highlights the parallels between common pregnancy-related conditions and non-pregnancy-related conditions, a theme upon which we elaborate in the Appendix to this article.

Keywords: ADA, ADAAA, Americans with Disabilities Act, ADA Amendments Act, pregnancy