23 No. 8 Disability Law Compliance Report NL 4
Disability Law Compliance Report
Volume 23, Issue 8
Disability Law Compliance Report
By Gary S. Marx
PREGNANCY AND THE ADA
In Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 191 L. Ed. 2d 279, 126 Fair Empl. Prac. Cas. (BNA) 765, 98 Empl. Prac. Dec. (CCH) P 45276 (2015), a major decision relating to an employer’s duty to provide a reasonable accommodation under the Pregnancy Discrimination Act (PDA), Justice Breyer included the following statement in the majority opinion:
We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the [Pregnancy Discrimination] Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008 [ADAAA], 122 Stat. 3555, codified at 42 U.S.C. §§ 12102(1)-(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., § 1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.
While explicitly not expressing a view on the issue, the foregoing language nevertheless suggests that—wholly apart from the PDA—an employer who refuses to provide an ADA accommodation requested due to a pregnancy-related condition faces ADA exposure.
The recent case of Bray v. Town of Wake Forest, 51 Nat’l Disability Law Rep. P 8, 2015 WL 1534515 (E.D. N.C. 2015), may be representative of the view most courts will take in future cases where a pregnant employee has asked for an accommodation under the ADA. Erin Bray was a newly hired police officer within her probationary period. After providing her employer with doctors’ notes instructing that she “lift not more than 20 to 25 pounds, run, jump, or have any potential physical altercations,” she was terminated. Her employer based its decision to terminate Bray on the grounds that: (1) she “was not able to perform the essential functions of a Police Officer;” (2) she was a probationary employee; (3) she was not eligible for the Family Medical Leave Act (FMLA); and (4) “[n]o light duty assignments were available for employees with temporary medical conditions.” Bray brought suit, in part, under the ADA and the employer moved to dismiss.
In denying the employer’s motion, the court first reasoned as follows:
• Under the new regime enacted by amendments to the ADA and the EEOC’s regulations, the plaintiff’s allegations as to her restrictions of lifting, running and jumping were sufficient to establish that she had a substantial impairment, or had a record of such impairment.
• Discrimination includes the failure to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.
• Congress broadened the definition of “disability” with passage of the ADAAA. The ADAAA was enacted in response to a series of U.S. Supreme Court decisions that the Court had believed had improperly restricted the ADA. Among its purposes, the ADAAA sought to convey Congressional intent that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis. “Disability” is to be construed in favor of broad coverage of individuals to the maximum extent permitted by the ADA’s terms.
• Acting under its Congressional directive, the EEOC revised its regulations to state that “[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA” and that the term “is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i).
The regulations provide that although “impairments that last only for a short period of time are typically not covered … they may be covered if sufficiently severe.”
As an example of a “sufficiently severe” temporary impairment, the regulations provide that, “if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.”
• The regulations specifically address pregnancy, providing that “conditions, such as pregnancy, that are not the result of a physiological disorder are … not impairments.” 29 C.F.R. Pt. 1630, App., § 1630.2(h). Nevertheless, the EEOC’s regulations further state that a “pregnancy-related impairment that substantially limits a major life activity is a disability…. Alternatively, a pregnancy-related impairment may constitute a ‘record of’ a ‘substantially limiting impairment,’ or may be covered under the ‘regarded as’ prong if it is the basis for a prohibited employment action and is not ‘transitory and minor.’” 29 C.F.R. Pt. 1630, App. § 1630.2(h) (effective May 24, 2011 to present).
The district court then turned to the issue of Fourth Circuit precedent which supported the employer’s argument that Bray’s condition was not a disability.
The court acknowledged well-established federal court precedent that pregnancy alone is not a “disability” for purposes of the ADA. Young, 707 F.3d at 443 (“With near unanimity, federal courts have held that pregnancy is not a ‘disability’ under the ADA,” quoting Wenzlaff v. NationsBank, 940 F. Supp. 889, 19 A.D.D. 1154, 9 A.D. Cas. (BNA) 582, 3 Wage & Hour Cas. 2d (BNA) 909, 132 Lab. Cas. (CCH) P 33465 (D. Md. 1996)).
Moreover, the Fourth Circuit has held that a temporary 20-pound lifting restriction on account of pregnancy is insufficient to show disability. Young, 707 F.3d at 445. In so holding, however, the court relied upon prior cases holding that “temporary impairments usually do not fall within the ADA’s limitation of ‘disability,’” Pollard v. High’s of Baltimore, Inc., 281 F.3d 462, 12 A.D. Cas. (BNA) 1409 (4th Cir. 2002), and also holding “as a matter of law, that a twenty-five pound lifting limitation … does not constitute a significant restriction on one’s ability to lift, work, or perform any other major life activity.,” Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346, 19 A.D.D. 46, 6 A.D. Cas. (BNA) 131 (4th Cir. 1996) (rejected by, Frix v. Florida Tile Industries, Inc., 970 F. Supp. 1027, 24 A.D.D. 234, 8 A.D. Cas. (BNA) 1411 (N.D. Ga. 1997)).
However, Young, Pollard, and Williams all involved interpretations of the ADA as it existed prior to the 2008 amendments. See Young, 707 F.3d at 443, n.7 (“Because Young filed her claim before the effective date of the amendments, which Congress did not make retroactive, we do not consider how, if at all the … amendments would affect Young’s ADA claims.”). In light of these differences, coupled with the ADA amendments and the Fourth Circuit’s approval of the EEOC’s temporary impairment regulations in Summers v. Altarum Institute, Corp., 740 F.3d 325, 29 A.D. Cas. (BNA) 1 (4th Cir. 2014), Young, Pollard and Williams were inapposite.
Based on this reasoning, the district court refused to dismiss Bray’s ADA claim.
The reasoning of the district court in Bray is supported by the guidelines promulgated by the EEOC following the passage of the ADAAA, in which the Commission stated: “[a]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA, as amended.” Enforcement Guide: Pregnancy Discrimination and Related Issues, available at http://www.eeoc.gov/laws/guidance/pregnancy _guidance.cfm# amer.
There seems to be a strong trend among the courts interpreting the statute in light of the 2008 amendments to find that most complications arising out of pregnancy can constitute disability sufficient to invoke the ADA and that whether they actually rise to the level of disability is a question of fact. See, for example, Oliver v. Scranton Materials, Inc., 2015 Fair Empl. Prac. Cas. (BNA) 183825, 2015 WL 1003981 (M.D. Pa. 2015); Annobil v. Worcester Skilled Care Center, Inc., 2014 WL 4657295 (D. Mass. 2014), appeal dismissed, (1st Cir. 15-1051)(Mar. 12, 2015)) (“Being pregnant, in and of itself, is not a handicap. However, complications related to pregnancy can constitute a handicap.”); Nayak v. St. Vincent Hosp. and Health Care Center, Inc., 27 A.D. Cas. (BNA) 596, 2013 WL 121838 (S.D. Ind. 2013); Mayorga v. Alorica, Inc., 26 A.D. Cas. (BNA) 1212, 2012 WL 3043021 (S.D. Fla. 2012) (collecting cases); See also A Sip Of Cool Water: Pregnancy Accommodation After The ADA Amendments Act, 32 YLLPR 97 Yale Law and Policy Review (Fall 2013); but see Lang v. Wal-Mart Stores East, L.P., 2015 WL 1523094 (D.N.H. 2015); Turner v. Eastconn Regional Educ. Service Center, 48 Nat’l Disability Law Rep. P 59, 2013 WL 6230092 (D. Conn. 2013), judgment aff’d, 588 Fed. Appx. 41, 23 Wage & Hour Cas. 2d (BNA) 1778 (2d Cir. 2014) (“Given that the plaintiff has not presented any evidence showing that her pregnancy was of such a complicated nature to permit the Court to stray from the accepted holding that pregnancies are not disabilities under the ADA … no reasonable trier of fact could find that the plaintiff has a disability as defined in the ADA.”).
See also Willis v. Career Education Corporation, 31 A.D. Cas. (BNA) 1293, 2015 WL 3859191 (N.D. Ill. 2015) (holding that uterine fibroids could be disabling condition).
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23 No. 8 Disability Law Compliance Report NL 4