Pregnancy and Disability – Are They Anything Alike?

Technically, no. The Americans with Disabilities Act (ADA) does not include pregnancy as a disability because of its temporary nature. However, the seminal preganancy discrimination statute, Preganancy Discrimination Act (PDA), which amended Title VII in 1978, does require similar treatment of  disabled and pregnant workers. For accommodation pruposes, pregnancy and disability are treated similarly. Check out the statue:

 … the term “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions, and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes… as other persons not so affected but similar in their ability or inability to work. §701(k)

The bolded section basically means that the employer MUST treat pregnant and disabled workers similarly regarding accommodations and any other employment benefits. The statute also makes the employer focus on the ability or inability to work for both pregnant and disabled employees, not their individual characteristics. Now, some people interpret this as equating pregnant women and disabled workers, and they find that offensive because pregnancy should be treated as a miracle of life-giving, not a disability. Although I do understand their perspective of pregnancy as an unique event and a singularly feminine occurrence, but I must differ.

Completely dissociating pregnancy from disability is a bad idea for two reasons: (1) risk of a revival of the “gilded cage”; and (2) it ultimately stigmatizes people with disabilities.

Throughout history, women have been discriminated aganist again and again because of their supposedly delicate and motherly nature (i.e. put into a gilded cage – had a life of relative luxury but no freedom). Males would fixate on women’s role as a child-bearer to justify the separate-sphere paradigm  that has made it so difficult for women to succeed. By shifting the focus from women’s ability or inability to work, the statute would be allowing the employer to consider women’s characteristic as child-bearers and mothers. Of course, that into itself is not a lie – women do bear children and are mothers. However, permitting employers to think about women’s femininity rather than ability to work will lead to a slide back into the “gilded cage” way of thinking – oh mothers are so pure, they should never be exposed to the world’s horrible and terrible things. Their place is in the home. Allowing women to be separated from disabled workers, for accommodation purposes, would be akin to allowing the old-fashioned meme of women-as-domestic-child-bearers-only to flourish. The reason why employment discrimination law exists is to prevent discriminatory stereotypes from entering employer’s decision-making, and focusing on ability or inability to do the job is a way to further that goal. 

Also, differentiating pregnant women from disabled workers ultimately stigmatizes the disabled workers by putting them in a separate and lesser category. Much of the advances in reducing discrimination based on disability (that includes you Deafies!), has come from focusing on the ability to do the job. The basic premise of Title I of the ADA, which deals with employment, is that if, with reasonable accommodations, an employee can do the job, s/he cannot be discriminated against because of disability. (The definition of reasonable accommodation is a whole ‘nother conversation). By putting pregnant women in a different category, we would undermine all of the ADA’s accomplishments in the last 19 years by saying, oh it’s not about ability to do the job, it is about the characteristic of the person doing the job.  In order for discrimination based on disability to disappear, we must shift our thinking to focus on the ABILITY to do the job, NOT the disability itself. Exempting pregnant women from this paradigm makes disabled people different, seperate, and ultimately, inferior. I would hope that we have learned our lesson from Plessy

N.B. For my more-regular readers, this post may seem to be very uncharacteristic – I am trying to discuss more legal issues pertaining to people with disabilities, as I think it’s a neat field of law. Hopefully you find these legal topics as interesting as I do.

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