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					                    PREGNANCY AND THE AMENDED
                   AMERICANS WITH DISABILITIES ACT


                                  Jeannette Cox*


        As Equal Employment Opportunity Commission (EEOC) regulations
that became effective on May 24, 2011 indicate, the ADA Amendments Act
expands the ADA’s disability definition to include persons with short-term
work limitations similar to the work limitations that frequently accompany
pregnancy. Rather than abandon its conclusion that the ADA excludes
pregnancy, however, the EEOC has reiterated its position that pregnancy
falls outside the ADA’s scope because it is the natural consequence of a
properly functioning reproductive system. This reluctance to associate
pregnancy with conditions medical science views as defects likely reflects
an unstated concern that ADA coverage will revive exclusionary and
paternalistic attitudes toward pregnancy.
        This concern fails to acknowledge that the ADA’s goal is to
remediate workplace policies that reflect formal and informal assumptions
that ADA class members are not legitimate workforce participants.
Accordingly, the ongoing cultural shift toward acknowledging pregnancy’s
compatibility with labor force participation dovetails with the attitudinal
shift the ADA aims to achieve for all forms of bodily difference. For ADA
purposes, the relevant question is not whether medical science regards a
physical condition as abnormal but instead whether workplace policies—
such as environmental hazards or inflexible lifting requirements—
effectively transform a naturally occurring physical condition into a
workplace “disability.” Accordingly, the ADAAA’s expansion of the ADA’s
protected class to include conditions that impose work limitations similar to
pregnancy should enable pregnant workers to similarly use the ADA to
obtain reasonable accommodations.




    *
     Associate Professor of Law, University of Dayton School of Law. I thank Kyle Fath,
Laura Havens, and Matthew Welker for excellent research assistance.




                                            1
                      PREGNANCY AND THE AMENDED ADA


    INTRODUCTION................................................................................................... 2
    I.        THE ADA'S SCOPE NOW INCLUDES CONDITIONS SIMILAR TO
              PREGNANCY ........................................................................................... 9
                   A. Relaxation of the Severity Requirement .................................... 9
                   B. Elimination of the Long Term Duration Requirement .............. 11
                   C. Coverage of Work Limitations Similar to Pregnancy ............... 13
    II.       THE INADEQUACY OF FEDERAL LAW TARGETING WORK-
              PREGNANCY CONFLICTS ........................................................................ 16
                   A. The Pregnancy Discrimination Act ........................................... 16
                   B. The Family Medical Leave Act ................................................. 19
    III.      CHARACERIZING PREGANCY AS AN ADA DISABILITY ........................... 23
                   A. Sources of Continued Resistance .............................................. 23
                   B. The ADAAA Repositions Pregnancy ......................................... 27
                   C. The ADAAA Reaffirms the ADA's Emphasis on Social
                      Responses to Bodily Difference ................................................. 29
                   D. The ADA's Purpose Encompasses Pregnancy .......................... 31

    CONCLUSION ...................................................................................................... 34



                                           INTRODUCTION

        Because of what one court recently termed ―a blind spot in the
statutory scheme created by Congress,‖ employers may dismiss pregnant
workers when the physical effects of their pregnancies conflict with the
employer‘s standard work expectations.1 For example, Heather Wiseman, a
retail sales associate, lost her job because consuming water while
working—an activity necessary to address the urinary and bladder
infections that accompanied her pregnancy—violated store policy.2
Similarly, Victoria Serednyj, a nursing home activity director, lost her job

    1
      Serednyj v. Beverly Healthcare LLC, No. 2:08-CV-4 RM, 2010 WL 1568606, at *13
(N.D. Ind. Apr. 16, 2010).
    2
      Wiseman v. Wal-Mart Stores, Inc., No. 08-1244-EFM, 2009 WL 1617669, at *1 (D.
Kan. June 9, 2009).
                   PREGNANCY AND THE AMENDED ADA                                          3

because her pregnancy required her to seek help rearranging tables and
transporting residents to and from the facility‘s activity room, tasks that
each ―took up a small part—roughly five to ten minutes—of Ms. Serednyj‘s
day.‖3 Jane Doe, a police officer, lost her accumulated seniority because she
was unable to continue performing the most physically demanding aspects
of her job during pregnancy and her department provided light duty
assignments only to officers injured on duty. 4 Similarly, Suzanne
Harvender‘s employer placed her on involuntary unpaid leave because a
portion of her job tasks involved exposure to chemicals harmful to fetal
development.5 She would have lost her job entirely had she not suffered a
miscarriage that enabled her to resume her usual job duties before the 12
week leave period the Family Medical Leave Act (FMLA) provides
expired.6
        Although reasonable temporary adjustments to work rules or job
duties may have enabled some or all of these women to continue working
during their pregnancies, what one court recently termed ―the gaps in the
law for pregnant women‖7 leaves most workers without a right to
pregnancy-related accommodations.8            Accordingly, a worker who
experiences a conflict between her pregnancy and her job faces two
unappealing options. One option is to continue working, despite risks to her
3
  Serednyj v. Beverly Healthcare LLC, No. 2:08-CV-4 RM, 2010 WL 1568606, at *3 (N.D.
Ind. Apr. 16, 2010); see id. (noting that ―Ms. Serednyj hadn't worked long enough to
qualify for FMLA‖).
     4
       See Karen J. Kruger, Pregnancy & Policing: Are They Compatible? Pushing the
Legal Limits on Behalf of Equal Employment Opportunities, 22 WIS. WOMEN‘S L.J. 61, 68-
69 (2007) (explaining that although Doe was entitled to FMLA leave and reinstatement
rights, her department placed her on leave so early in her pregnancy that she exhausted the
twelve weeks of FMLA leave before the baby arrived).
     5
       Harvender v. Norton Co., No. 96-CV-653, 1997 WL 793085, at *1 (N.D.N.Y. Dec.
15, 1997).
     6
       Id.
     7
       Serednyj v. Beverly Healthcare LLC, No. 2:08-CV-4 RM, 2010 WL 1568606, at *13
(N.D. Ind. Apr. 16, 2010).
     8
       See Joanna L. Grossman, Pregnancy, Work, and the Promise of Equal Citizenship, 98
GEO. L.J. 567 (2010) (noting that ―[t]he EEOC recently issued interpretive guidance that
encourages employers to be more flexible about task reassignment for pregnant workers,
but this recommendation is not binding.‖). A few states require employers to reasonably
accommodate at least some pregnant workers who experience conflicts between their
pregnancies and their jobs. See, e.g., 775 ILL. COMP. STAT. 5/2-102 (H) (2008) (prohibiting
employers from refusing light-duty assignments for pregnant law enforcement officers or
firefighters ―where that transfer can be reasonably accommodated‖); TEX. GOV‘T CODE
ANN. § 411.0079 (West 2005) (requiring ―reasonable efforts to accommodate‖ a law
enforcement officers with partial physical restrictions because of pregnancy and requiring
transfer to a light-duty position upon medical necessity if one is available); see also CAL.
GOV‘T CODE § 12945(c)(2) (West 2005); CONN. GEN. STAT. ANN. § 46a-60(a)(7)(E)-(G)
(West 2009); P.R. LAWS ANN. tit. 29, § 469; HAW. ADMIN. R. § 12-46-107(c) (1990).
                    PREGNANCY AND THE AMENDED ADA

health and the health of her unborn child. The second option is to
temporarily leave her job. If the worker is among the 62% of workers
covered by the FMLA, the worker may have the right to be reinstated in a
similar job if she is able to resume all her job duties within twelve weeks.
Her use of FMLA leave, however, will eliminate her income during
pregnancy and reduce the FMLA leave time available for childbirth,
recovery, and care for her newborn child.9 Workers not covered by the
FMLA or whose work limitations exceed twelve weeks will simply lose
their jobs.
        The ADA—a statute aimed to challenge workplace policies that
exclude persons with biological traits that differ from the traditional
―prototypical‖ worker—would appear to be a useful vehicle to reshape the
workplace to accommodate the temporary physical effects of pregnancy.
The ADA recognizes that many workplace policies that exclude physically-
variant workers are not inevitable. Instead, such policies frequently reflect
historical assumptions that persons with certain physical traits would not
participate in paid work. For example, the ADA frequently requires
employers to modify work sites that have been constructed with stairs and
narrow doorways because these design decisions reflect the discriminatory
assumption that persons who use wheelchairs should not participate in paid
work.
        Although the ADA‘s focus on reshaping the workplace to
accommodate historically excluded persons could, in theory, extend to
reshaping employment practices and work rules that exclude pregnant
workers, courts and the Equal Employment Opportunity Commission
(EEOC) have concluded that the ADA does not apply to pregnant workers
who experience conflicts between their pregnancies and their jobs. 10 They

9
  Many workers eligible for FMLA leave say they do not take it because they cannot afford
it. DAVID CANTOR ET AL., DEP'T OF LABOR, BALANCING THE NEEDS OF
FAMILIES AND EMPLOYERS: FAMILY AND MEDICAL LEAVE SURVEYS 2000
UPDATE             tbl.        2.17         (2000),          available        at        http://
www.webharvest.gOv/peth04/20041118135126/http://
www.dol.gov/asp/fmla/chapter2.htm#2.2.4 (in survey of persons who declined FMLA
leave, 77.6% indicated that inability to afford it was one of the reasons).
    10
       See, e.g., Spees v. James Marine, Inc., 617 F.3d 380, 396 (6th Cir. 2010) (―Because
pregnancy is not the result of a physiological disorder, it is not an impairment.‖); Marchioli
v. Garland Co., Inc., No. 5:11–cv–124, 2011 WL 1983350, 7 (N.D.N.Y.) (N.D.N.Y., May
20, 2011) (pregnancy, by itself, does not constitute a disability under the ADA); Appel v.
Inspire Pharmaceuticals, Inc., 712 F. Supp. 2d 538, 548 (N.D. Tex. 2010) (―pregnancy
alone is not a disability under the ADA‖); Hogan v. Ogden, CV-06-5078-EFS, 2008 WL
2954245, at *5 (E.D. Wash. July 30, 2008) (―Courts have generally held that pregnancy,
and pregnancy-related complications, do not qualify as ‗disabilities‘ under the Acts.‖);
Wenzlaff v. NationsBank, 940 F. Supp. 889, 890 (D. Md. 1996) (―With near unanimity,
federal courts have held that pregnancy is not a ‗disability‘ under the ADA.‖); 29 C.F.R. pt.
                     PREGNANCY AND THE AMENDED ADA                                             5

have reasoned that although the ADA may cover serious medical disorders
that accompany pregnancy, it does not cover the normal physical effects of
pregnancy such as the need to curtail repetitive heavy lifting and exposure
to hazardous chemicals.11 On occasion, courts have even regarded
pregnancy-related physiological disorders such as pregnancy-induced
hypertension, gestational diabetes, temporary fetal distress, and pregnancy
complications requiring several weeks of bedrest as too close to typical
pregnancy to warrant ADA protection.12 As a result, many pregnant
workers who are exposed to job-related risks to their health and the health
of their unborn children have no right to request modifications to their job
duties until serious injury occurs.
        Although courts have listed a myriad of reasons for excluding
pregnancy from the ADA‘s scope—such as the short term nature of
pregnancy, the relatively minor functional limitations pregnancy imposes,
and the existence of the Pregnancy Discrimination Act—most courts have
primarily relied on the EEOC‘s conclusion that pregnancy is not an ADA


1630 app. § 1630.2(h) (effective until May 24, 2011) (―conditions, such as pregnancy, that
are not the result of a physiological disorder are . . . not impairments‖); see also EEOC
Compliance Manual § 902.2(c)(3) (1994) (―Because pregnancy is not the result of a
physiological disorder,‖ it ―is not an impairment and therefore cannot be a disability‖).
     11
         See, e.g., Serednyj, 2010 WL 1568606, at *16 (concluding that light duty
restrictions, as well as two weeks of bed rest, did not establish that the plaintiff‘s pregnancy
complications were sufficiently severe to fall within the ADA‘s protected class); Farrell v.
Time Serv., Inc., 178 F. Supp. 2d 1295, 1298-99 (N.D. Ga. 2001) (―At most, courts have
held that pregnancy may rise to the level of a disability if there are severe complications.‖);
Minott v. Port Auth. of N.Y. & N.J., 116 F. Supp. 2d 513, 525 (S.D.N.Y. 2000) (noting that
courts have found pregnancy-related conditions to qualify as ADA-recognized disabilities
―only in extremely rare circumstances‖); Martinez v. Labelmaster, No. 96 C 4189, 1998
WL 786391, at *8 (N.D. Ill. Nov. 6, 1998) (holding that the plaintiffs‘ lifting restrictions
were ―a general condition of pregnancy, not a complication unique to Martinez‘s
pregnancy,‖ and therefore the plaintiff did not have an impairment within the meaning of
the ADA); Richards v. City of Topeka, 934 F. Supp. 378, 380, 382 (D. Kan. 1996) (holding
that the fact the plaintiff‘s doctor imposed light duty restrictions did not, as a matter of law,
bring her within the ADA‘s protected class); see also Gorman v. Wells Mfg. Corp., 209 F.
Supp. 2d 970, 975-76 (S.D. Iowa 2002) (dismissing pregnancy-related ―nausea, vomiting,
and extreme fatigue‖ as outside the ADA‘s scope on the rationale that it is ―common
knowledge that all of these symptoms, at some degree of severity, are part and parcel of a
normal pregnancy‖); Gudenkauf v. Stauffer Communications, Inc, 922 F. Supp. 465 (D.
Kan. 1996) (―All of the physiological conditions and changes related to a pregnancy‖
cannot qualify as impairments under the ADA ―unless they exceed normal ranges or are
attributable to some disorder.‖).
     12
        Serednyj, 2010 WL 1568606 (bedrest); Leahr v. Metro. Pier & Exposition Auth.,
No. 96C1388, 1997 WL 414104, at *2-3 (N.D. Ill. July 17, 1997) (hypertension);
Kennebrew v. New York Housing Auth., No. 01 CIV 1654(JSR)(AJP), 2002 WL 265120,
at *18, n. 32 (S.D.N.Y. Feb. 26, 2002) (gestational diabetes); Muska v. AT & T Corp., No.
96C5952, WL 544407, at *9 (N.D. Ill. Aug. 25, 1998) (temporary fetal distress).
                    PREGNANCY AND THE AMENDED ADA

disability because it is not a disease or defect.13 They reason that although
pregnancy ―certainly‖ is ―a physiological condition,‖ it does not fit within
the ADA‘s scope because it is ―the natural consequence of a properly
functioning reproductive system‖ and ―there is no negative effect when a
woman becomes pregnant.‖14 Using this ―inherently negative‖ approach to
ADA coverage, courts reason that while infertility—a condition far less
likely than pregnancy to conflict with an employer‘s work expectations—
falls within the ADA‘s scope, pregnancy does not.15
        Judicial and agency reluctance to associate pregnancy with
conditions medical science views as defects likely also reflects an unstated
concern that permitting pregnant workers to argue they have ADA
disabilities will revive exclusionary and paternalistic attitudes toward
pregnancy. Despite the ADA‘s goal to dissociate negative ―unable to work‖
assumptions from the term ―disability‖ and to emphasize that a significant
portion of the vocational disadvantages persons with disabilities experience
are socially imposed rather than inherent in the individual, feminists hesitate
to associate pregnancy with disability.16 This concern that the ADA‘s
coverage of pregnancy will revive exclusionary and paternalistic stereotypes
associated with pregnancy, however, fails to acknowledge that the ADA‘s
reasonable accommodation provision is not a charitable effort to
compensate for inherent physical frailties but instead a civil rights effort to
remediate workplace policies and architecture that embody the
discriminatory assumption that ADA class members are not legitimate
workforce participants.
        The recent passage of the ADA Amendments Act (ADAAA)
provides an opportunity to examine and challenge the assumption that the
ADA‘s scope excludes pregnancy. The EEOC‘s new interpretive guidance
implementing the ADAAA indicates that the ADA now includes persons
with temporary physical limitations comparable to those many pregnant

    13
        See 29 C.F.R. pt. 1630 app. § 1630.2(h) (―conditions, such as pregnancy, that are not
the result of a physiological disorder are . . . not impairments‖); see also EEOC
Compliance Manual § 902.2(c)(3) (―Because pregnancy is not the result of a physiological
disorder,‖ it ―is not an impairment and therefore cannot be a disability.‖).
     14
        Brennan v. National Telephone Directory Corp., 850 F. Supp. 331, 343 (E.D. Pa.
1994) (applying a state statute similar to the ADA); see also Gudenkauf v. Stauffer
Communications, Inc., 922 F. Supp. 465, 473 (D. Kan. 1996) (―[A]ll of the physiological
conditions and changes related to a pregnancy‖ cannot qualify as impairments under the
ADA ―unless they exceed normal ranges or are attributable to some disorder.‖).
     15
        Saks v. Franklin Covey Co., 117 F. Supp. 2d 318, 326 (S.D.N.Y. 2000).
          16
             15 Berkeley J. Emp. & Lab. L. 335 (.1994) (―defining pregnancy itself as a
disability would reverse years of argument and pressure by many women against traditional
stereotypes of this natural function‖)
                    PREGNANCY AND THE AMENDED ADA                                          7

workers experience. For example, it provides that a person with a
temporary back injury that ―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.17 Perhaps because of the facial similarity between this example
and work-related difficulties pregnant women experience, the EEOC‘s
Interpretive Guidance also reiterates and strengthens the EEOC‘s position
that the ADA excludes pregnancy because pregnancy, unlike a back injury,
is not ―a physiological disorder.‖18
        This article argues that the healthy nature of pregnancy should not
exclude it from the ADA‘s scope.19 Within the context of the ADA, it is not
correct to conclude that ―there is no negative effect when a woman becomes
pregnant‖20 because the ADA is concerned with barriers to workforce
participation rather than whether a physical condition has an inherently
deleterious effect on the body. Often drawing express analogies to feminist
arguments that the workplace is inappropriately structured to solely
accommodate male needs, disability rights advocates who pushed for the
ADA argued that many workplace rules that exclude persons with
disabilities reflect an exclusionary assumption that only physically typical
persons would engage in work and other aspects of public life. Rather than
distancing pregnancy from the ADA‘s purpose, the ongoing cultural shift
toward acknowledging that pregnancy is a healthy biological state rather
than a defect dovetails with the attitudinal shift the ADA aims to achieve for
all forms of physical variation formerly viewed as incompatible with paid
work.
    17
        29 C.F.R. pt. 1630 app. § 1630.2(j) (effective until May 24, 2011).
    18
        See 29 C.F.R. pt. 1630 app. 1630.2(h) (―conditions, such as pregnancy, that are not
the result of a physiological disorder are . . . not impairments. However, a pregnancy-
related impairment that substantially limits a major life activity is a disability‖); 76 Fed.
Reg. 16980 (Mar. 25, 2011) (―The Commission received several comments seeking
explanation of whether pregnancy-related impairments may be disabilities. To respond to
these inquiries, the final appendix states that although pregnancy itself is not an
impairment, and therefore is not a disability, a pregnancy-related impairment that
substantially limits a major life activity is a disability.‖). The EEOC‘s more informal and
abbreviated ―question and answer‖ documents also emphasize that the ADA excludes
pregnancy. See EEOC, Questions and Answers on the Final Rule Implementing the ADA
Amendments                Act             of             2008,         available           at
http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.; EEOC, Questions and
Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act
of 2008, available at http://www.eeoc.gov/laws/regulations/adaaa_qa_small_business.cfm.
     19
        Samuel R. Bagenstos, Subordination, Stigma, and ―Disability,‖ 86 VA. L. REV. 397,
407 (2000) (―The application of the ADA to [pregnancy] raises an exceptionally interesting
theoretical question that requires much further study.‖).
     20
        Brennan v. National Telephone Directory Corp., 850 F. Supp. 331, 343 (E.D. Pa.
1994) (applying a state statute similar to the ADA).
                 PREGNANCY AND THE AMENDED ADA

        Additionally, rather than reviving exclusionary and paternalistic
attitudes toward pregnancy, permitting pregnant workers to use the ADA to
obtain workplace accommodations will help reshape the workplace to more
fully account for the reality that over eighty percent of American women
become pregnant at least once during their working years.21 Pregnant
workers who continue to experience work barriers should, like more
traditional members of the ADA‘s protected class, have a legal right to
engage in an interactive process with their employer to explore the
feasibility of adjusting work rules, job responsibilities, and proximity to
harmful chemicals and other environmental hazards. The ADA should
require employers to restructure work rules to accommodate the temporary
effects of pregnancy, particularly now that the ADA now requires
employers to accommodate short term physical limitations caused by other
physical conditions.
        Part I will argue that the ADAAA sweeps aside many objections to
recognizing pregnancy as a potential ADA disability. By relaxing the
severity and durational requirements courts had previously imposed on the
ADA, the ADAAA brings into the ADA‘s protected class persons with
functional limitations similar to the functional limitations pregnant workers
experience. Part II will briefly refute courts‘ conclusions that federal laws
specifically designed to address the disadvantages pregnant workers
experience obviate the need for the ADA to cover pregnancy. It
demonstrates that because the Pregnancy Discrimination Act and the Family
Medical Leave Act are structured around the typical needs of middle- and
high-income workers in sedentary occupations, they do not account for the
work-pregnancy conflicts and resulting sex segregation that continues to
characterize low income and physically demanding work. Also, by
enabling employers to force pregnant workers unable to continue their usual
job responsibilities to take unpaid leave without regard to the feasibility of
temporarily restructuring their jobs, the FMLA perpetuates the historical
view that the incompatibility between pregnancy and the workplace is
located solely in the pregnant worker. Finally, Part III will argue that the
healthy nature of pregnancy should not exclude it from the ADA‘s scope.
As the ADAAA reaffirms, the ADA‘s concern is not the nature of an
individual‘s physical limitations but instead the work policies and practices
that unnecessarily limit an individual‘s employment opportunities. While
the modern experience of pregnancy typically involves significantly less
disadvantage than many physical conditions more traditionally regarded as
within the ADA‘s scope, the ADAAA‘s expansion of the ADA‘s protected
class to include persons with short term back problems that limit their
    21
      Dye, Jane Lawler, Fertility of American Women: June 2008, Current Population
Reports, P20-563, U.S. Census Bureau, Washington, DC.
                    PREGNANCY AND THE AMENDED ADA                                          9

ability to lift more than fifty pounds suggests that the ADA‘s focus on
remediating social disadvantages associated with biological difference
should now extend to the inflexible work rules that force women out of their
jobs when they become pregnant.



    I.       THE ADA'S SCOPE NOW INCLUDES CONDITIONS SIMILAR                             TO
             PREGNANCY

        The ADAAA‘s expansion of the ADA‘s protected class to
encompass persons with short term work limitations similar to those
experienced by pregnant workers highlights the incongruity of continuing to
exclude pregnant workers from the ADA‘s protected class. Prior to the
ADAAA, most courts that excluded pregnancy from the ADA‘s protected
class not only relied on the EEOC‘s conclusion that healthy conditions fall
outside the ADA‘s scope, but also reasoned that pregnancy imposes
functional limitations that are too minor and short term to constitute an
ADA disability.22          This conclusion reflected the conventional
understanding, commonly embraced by courts prior to the ADAAA, that the
ADA‘s disability definition should ―be interpreted strictly to create a
demanding standard for qualifying as disabled.‖23 The ADAAA, however,
brings into the ADA‘s protected class persons with functional limitations
similar to the functional limitations pregnant workers experience.


             A. Relaxation of the Severity Requirement

         Expressly stating that judicial interpretations of the ADA‘s disability
definition had ―created an inappropriately high level of limitation necessary
to obtain coverage under the ADA,‖ the ADAAA loosens the courts‘
restrictive interpretation of the ADA‘s disability definition in several ways
that are relevant to courts‘ pre-ADAAA assumptions that the ADA‘s

    22
        See, e.g., Serednyj v. Beverly Healthcare LLC, 2:08-CV-4 RM, 2010 WL 1568606
(N.D. Ind. Apr. 16, 2010) (concluding that a pregnant woman fell outside the ADA‘s
protected class because ―short-term, temporary restrictions aren't substantially limiting and
don't render a person disabled under the ADA‖); Jessie v. Carter Health Care Ctr., Inc., 926
F. Supp. 613 (E.D. Ky. 1996) dismissing the plaintiff‘s her claim because pregnancy is a
―temporary, nonchronic condition of short duration‖); Saffer v. Town of Whitman, No.
CIV.A.85-4470-Z, 1986 WL 14090, at *1 (D. Mass. Dec. 2, 1986) (―Plaintiff cannot base
her § 1983 claim on § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982), since
a temporary condition, such as pregnancy, is not a disability under that statute.‖).
     23
        Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 197 (2002).
                    PREGNANCY AND THE AMENDED ADA

disability definition does not include pregnancy.24 While the ADAAA does
not alter the requirement that an individual must have ―a physical or mental
impairment that substantially limits one or more major life activities,‖25 the
ADAAA expands the definition of ―major life activity‖ beyond ―activities
that are of central importance to most people‘s daily lives‖26 to include ―the
operation of a major bodily function,‖‖27 and work-related tasks such as
―standing, lifting, [and] bending.‖28 The ADAAA also emphatically rejects
the Supreme Court‘s conclusion that the term ―substantially limits‖ means
that an impairment must ―prevent[] or severely restrict[]‖ the individual
from performing a major life activity.29 Instead, the ADAAA provides that
the term ―substantially limits‖ is a ―generous and inclusive definition of
disability‖30 that ―shall be construed in favor of broad coverage.‖31

     24
       ADA Amendments Act of 2008, Pub. L. No. 110.325, § (2)(b)(5), 122 Stat. 3553,
3554 (2008); see also EEOC Interpretive Guidance, 76 FR 17005 (―The primary purpose of
the Amendments Act was to make it easier for people with disabilities to obtain protection
under the ADA.‖)
    25
       42 U.S.C. § 12102(1).

26
   42 U.S.C. § 12101(b) (―The purposes of this Act are . . . . (4) to reject the standards
enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002) . . . . that to be substantially limited in performing a major
life activity under the ADA ―an individual must have an impairment that prevents or
severely restricts the individual from doing activities that are of central importance to most
people‘s daily lives‖); 76 FR 17008 (interpretive guidance) (indicating that a person may
now demonstrate a substantial limitation of a major life activity by demonstrating a
substantial limitation in a relatively narrow category of tasks that are not necessarily of
central importance to daily life).

     27
        42 U.S.C. § 12102(2)(B).
     28
        42 U.S.C. § 12102(2)(A).
     29
        42 U.S.C. § 12101(b) (―The purposes of this Act are . . . . (4) to reject the standards
enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002) . . . . that to be substantially limited in performing a major
life activity under the ADA ―an individual must have an impairment that prevents or
severely restricts the individual from doing activities that are of central importance to most
people‘s daily lives‖). The ADAAA also rejects the EEOC‘s slightly more generous
conclusion that an impairment must ―significantly‖ restrict a major life activity 42 U.S.C. §
12101(b) (―The purposes of this Act are-- . . . to express Congress‘ expectation that the
Equal Employment Opportunity Commission will revise that portion of its current
regulations that defines the term ‗substantially limits‘ as ‗significantly restricted‘ to be
consistent with this Act, including the amendments made by this Act‖); Interpretive
Guidance, 76 FR 17008 (―It is clear in the text and legislative history of the ADAAA that
Congress concluded the courts had incorrectly construed ‗substantially limits,‘ and
disapproved of the EEOC‘s now-superseded 1991 regulation defining the term to mean
‗significantly restricts.‘‖).
     30
        Statement of the Managers to Accompany S. 3406, The Americans with Disabilities
                     PREGNANCY AND THE AMENDED ADA                                           11

Accordingly, in order to be considered substantially limiting, ―[a]n
impairment need not prevent, or significantly or severely restrict, the
individual from performing‖ a major life activity‖ as compared to ―most
persons in the general population.‖32


              B. Elimination of the Long Term Duration Requirement

        The ADAAA also eliminates the durational requirements courts had
imposed on ADA disabilities. Prior to the ADAAA, many courts
considered a condition‘s ―permanent or long term impact‖ an absolute
requirement for ADA disability.33 Courts denied ADA class membership to
persons whose physical or mental impairments caused substantial
limitations that lasted less than three months.34 Courts also held that the
ADA excluded persons with conditions that imposed substantial limitations
episodically, such as dysthymia, a chronic depressive disorder characterized
by intermittent bouts of depression.35 In response to the latter group of
cases, the ADAAA expressly provides that ―[a]n impairment that is episodic
or in remission is a disability if it would substantially limit a major life
activity when active.‖36 Accordingly, ―[t]he fact that the periods during
which an episodic impairment is active and substantially limits a major life
activity may be brief or occur infrequently is no longer relevant to
determining whether the impairment substantially limits a major life

Act Amendments Act of 2008.
     31
         42 U.S.C. § 12102(4)(A); Id. § 4(a). The ADAAA also expressly notes that
Congress expects the Equal Employment Opportunity Commission (EEOC) to revise its
definition of the term ―substantially limits.‖ Id. § (2)(b)(6) (―The purposes of this act are . .
. to express Congress‘ expectation that the Equal Employment Opportunity Commission
will revise that portion of its current regulations that defines the term ‗substantially limits‘
as ‗significantly restricted‘ to be consistent with this Act, including the amendments made
by this Act.‖).
     32
        29 C.F.R. § 1630.2(j)(ii).
     33
        See, e.g., Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 185 (2002)
(―The impairment's impact must . . . be permanent or long term‖); McIntosh v. Brookdale
Hosp. Med. Ctr., 942 F. Supp. 813, 820-21 (E.D.N.Y. 1996), (―disabling, but transitory,
physical or mental condition will not trigger the protections of the ADA‖).
     34
        Atkins v. USF Dugan, Inc., 106 F. Supp. 2d 799, 804-5 (M.D.N.C. 1999) (heart
disease that necessitated a three-month absence from work); Hamm v. Runyon, 51 F.3d
721 (7th Cir. 1995) (breast cancer);
     35
        See, e.g., Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997)
(reasoning that while Soileau‘s doctor had concluded that his ―underlying disorder
(dysthymia) will be a life-long condition, Soileau has failed to adduce any evidence that his
impairment—the acute, episodic depression—will be long term‖ because his most recent
bout of depression ―required only a five-week work absence.‖).
     36
        42 U.S.C. § 12102(4)(d).
                    PREGNANCY AND THE AMENDED ADA

activity.‖37
        While the ADAAA does not expressly address whether employers
must accommodate persons with conditions, like pregnancy, that will
disappear completely after several months, the EEOC‘s interpretations of
the ADAAA strongly suggest that the ADA covers short term conditions.38
In its recent efforts to update its Interpretive Guidance to conform to the
ADAAA, the EEOC deleted from its Interpretive Guidance the
longstanding statement that ―[t]emporary, nonchronic impairments that do
not last for a long time and that have little or no long term impact‖ such as
―broken limbs, sprained joints, concussions, appendicitis, and influenza . . .
are usually not disabilities.‖39 Although the EEOC‘s Notice of Proposed
Rulemaking had contained a similar list of conditions that would normally
not qualify for ADA coverage, the EEOC declined, in the final regulations,
to state that any particular condition would not be covered.40 Even more
significantly, the EEOC also deleted from its formal regulations its
longstanding advice that courts should consider an impairment‘s ―duration‖
and its ―permanent or long term impact‖ when determining whether an
impairment is substantially limiting.41
        Also, to eliminate any potential confusion that the ADAAA‘s
expansion of the ADA‘s ―regarded as‖ prong might engender, the EEOC
adopted a formal regulation providing ―an impairment may qualify as an
ADA disability even if it lasts, or is expected to last, for fewer than six


    37
         76 FR 17011 (interpretive guidance); see also EEOC, Questions and Answers on the
Final Rule Implementing the ADA Amendments Act of 2008 (―An impairment such as
cancer that is in remission but that may possibly return in a substantially limiting form will
. . . be a disability under the ADAAA.‖)
      38
         EEOC, Questions and Answers for Small Businesses: The Final Rule Implementing
the ADA Amendments Act of 2008 (Q: ―Do the regulations require that an impairment last
a particular length of time to be considered substantially limiting?‖ A: ―No. Even a short-
term impairment may be a disability if it is substantially limiting.‖).
      39
         1630.2(j) Appendix (Interpretive Gudiance). Version in effect until May 24, 2011.
      40
         Introduction to Final Rule (―Consistent with its effort to streamline the text of the
final rule, the Commission has deleted examples that appeared in the NPRM, illustrating
how the ―transitory and minor‖ exception applies.‖; FR 16982 (―[T]he Commission has not
in the final regulations specified any specific minimum duration that an impairment‘s
effects must last in order to be deemed substantially limiting.‖).
      41
         29 C.F.R. § 1630.2(j)(2) (version effective until May 24, 2011); see also 76 FR
17013 (indicating that because ―it is always necessary to consider and apply the rules of
construction in § 1630.2(j)(1)(i)-(ix) that set forth the elements of broad coverage enacted
by Congress. 2008 Senate Statement of Managers at 6. . . . the Commission's regulations . .
. no longer include the additional list of ―substantial limitation‖ factors contained in the
previous version of the regulations (i.e., the nature and severity of the impairment, duration
or expected duration of the impairment, and actual or expected permanent or long-term
impact of or resulting from the impairment). ―)
                    PREGNANCY AND THE AMENDED ADA                                           13

months.‖42 With this statement, the EEOC emphasized that the durational
limitation the ADAAA places on the ADA‘s special ―regarded as‖ coverage
provision—a provision that allows persons with only ―minor‖ impairments
to sue for certain forms of disability discrimination43—does not apply to
persons whose impairments ―substantially limit[] one or more major life
activities.‖44 Accordingly, so long as a worker‘s impairment ―substantially
limits one or more major life activities,‖ as the ADAAA redefines those
terms, the ADA requires the employer to provide the worker reasonable
accommodations to enable them to continue working, even when the
limitations are short term.45


              C. Coverage of Work Limitations Similar to Pregnancy

        The combined effect of the ADAAA‘s relaxation of the severity and
durational requirements courts had previously imposed onto the ADA is
that the ADAAA brings into the ADA‘s protected class persons with
functional limitations similar to the functional limitations pregnant workers
experience in jobs that require heavy lifting, prolonged standing, and other
tasks incompatible with pregnancy. For example, in the Appendix to the
new regulations, the EEOC twice refers to a person who has an impairment
resulting in a ―20-pound lifting restriction that lasts or is expected to last for
several months‖ as a person with an ADA disability. 46 Similarly, the EEOC
concludes that an individual ―whose back or leg impairment precludes him
or her from standing for more than two hours without significant pain‖ has
an ADA disability.47 Additionally, the EEOC concludes that an individual

    42
         See
    43
         Persons who establish membership in the ADA‘s protected class solely through the
―regarded as‖ prong may not sue for reasonable accommodations. 42 U.S.C. 12201(h).
      44
         74 FR 48431-01 (2009) (―The ‗transitory and minor‘ exception in . . . the ‗regarded
as‘ prong of the definition of ‗disability‘ . . . does not establish a durational minimum for
the definition of ―disability‖ under (g)(1) (actual disability) or (g)(2) (record of a
disability.)‖).
      45
         EEOC Commissioner Chai Feldblum has emphasized that the relevant question is
whether a condition ―substantially limits a major life activity in that moment, in that
moment.‖ (repetition for emphasis). ABA Webcast: EEOC Commissioners Explain Final
ADAAA Regulations, May 4, 2011.
      46
         See 76 FR 17011 (interpretive guidance) (―someone with an impairment resulting in
a 20-pound lifting restriction that lasts or is expected to last for several months is
substantially limited in the major life activity of lifting‖); id. (―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.‖)
      47
         76 FR 17012 (interpretive guidance)
                    PREGNANCY AND THE AMENDED ADA

has an ADA disability if he or she has a physical impairment causing him or
her to experience ―shortness of breath and fatigue when walking distances
that most people could walk without experiencing such effects.‖48
         The individuals the EEOC indicates may now establish membership
in the ADA‘s protected class via the major life activity of working also
resemble workers who experience difficulties conforming to their
employer‘s work expectations during pregnancy. The EEOC provides that
a person‘s difficulties with lifting, prolonged standing, walking, and other
tasks need not reach the ―substantial‖ threshold if the person‘s less
significant difficulties with these tasks substantially limits the person‘s
ability to do his or her current job and ―substantially limits his or her ability
to perform a class of jobs or broad range of jobs in various classes as
compared to most people having comparable training, skills, and
abilities.‖49 By way of illustration, the EEOC provides an example with a
strong facial similarity to pregnancy:
              if a person whose job requires heavy lifting develops a
         disability that 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, that person would be
         substantially limited in working because he or she is
         substantially limited in performing the class of jobs that
         require heavy lifting. 50
Many of the EEOC‘s other examples of ―class[es] of jobs‖ the exclusion
from which constitutes an ADA disability also are similar to the classes of
jobs that pose difficulties for workers when they become pregnant. The
EEOC lists ―jobs requiring repetitive bending, reaching, or manual tasks,
jobs requiring repetitive or heavy lifting, prolonged sitting or standing,
extensive walking, driving, or working under conditions such as high
temperatures.‖51

    48
         76 FR 17012 (interpretive guidance). The EEOC also indicates that relevant
considerations include ―the difficulty, effort, or time required to perform a major life
activity‖ as well as ―pain experienced when performing a major life activity.‖29 CFR
1630(j)(4).
     49
        76 FR 17014 (2011); see also EEOC, Questions and Answers on the Final Rule
Implementing the ADA Amendments Act of 2008 (―In certain situations, an impairment
may limit someone‘s ability to perform some aspect of his or her job, but otherwise not
substantially limit any other major life activity. In these situations, the individual may be
substantially limited in working.‖)
     50
        76 FR 17014 (2011)
     51
         76 FR 17014 (2011). The EEOC indicates that other classes of jobs include
―commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law
enforcement jobs.‖ Id.
                    PREGNANCY AND THE AMENDED ADA                                         15

        Although the EEOC notes that its interpretations of the amended
ADA will help low-skilled workers with physical limitations to obtain ADA
accommodations far more easily than before,52 the EEOC continues to
reiterate its longstanding position that the ADA does not cover physical
limitations resulting from pregnancy.53 In documents issued after the
ADAAA‘s enactment, the EEOC emphasizes that ―[b]ecause pregnancy is
not the result of a physiological disorder,‖ it ―is not an impairment and
therefore cannot be a disability.‖54 To further emphasize that a pregnant
worker must identify something diagnosably wrong with her body before
she may request an ADA accommodation, the EEOC has also revised its
pre-ADAAA statement which provided that ―[c]omplications resulting from
pregnancy . . . are impairments‖55 to indicate that ADA coverage extends
only to ―pregnancy-related impairment[s],‖56 such as ―gestational
diabetes.‖57 This change may be an attempt to dissuade courts from
characterizing the typical effects of pregnancy—such as an inability to
safely lift over 50 pounds—as pregnancy ―complications‖ and thus ADA


    52
        The EEOC identifies a 2001 D.C. Circuit case, Duncan v. WMATA, , 240 F.3d 1110,
1115 (DC Cir. 2001) as having applied an ―onerous standard that would be inappropriate
under the Amendments Act.‖ FR 17013 n.3. In that case, the court had concluded that a
manual laborer whose back injury prevented him from lifting more than 20 pounds was not
substantially limited in working because he did not present evidence of the number and
types of jobs available to him in the Washington area. The court regarded as insufficient
testimony that demonstrated he made inquires and applied for truck driving jobs that all
required heavy lifting. Id.
53
   Compliance Manual, § 902.2(c)(3). 29 C.F.R. pt. 1630 app. § 1630.2(h) (―conditions,
such as pregnancy, that are not the result of a physiological disorder are . . . not
impairments.‖).
     54
        FR 17007 (―conditions, such as pregnancy, that are not the result of a physiological
disorder are . . . not impairments. However,
     a pregnancy-related impairment that substantially limits a major life activity is a
disability); FR 16980 (―The Commission received several comments seeking explanation
of whether pregnancy-related impairments may be disabilities. To respond to these
     inquiries, the final appendix states that although pregnancy itself is not an impairment,
and therefore is not a disability, a pregnancy-related impairment that substantially limits a
major life activity is a disability.‖); EEOC, Questions and Answers on the Final Rule
Implementing the ADA Amendments Act of 2008; EEOC, Questions and Answers for
Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008.
     55
         See EEOC Compliance Manual, Vol.2, EEOC Order 915.002, § 902.2(c)(3).
EEOC        COMPLIANCE          MANUAL,          §    902.2(c)(3),   available       at  http:
www.eeoc.gov/policy/docs/902cm.html (―Complications resulting from pregnancy,
however, are impairments‖).
     56
        76 FR 980.
     57
        See Questions and Answers on the Final Rule Implementing the ADA Amendments
Act of 2008; EEOC, Questions and Answers for Small Businesses: The Final Rule
Implementing the ADA Amendments Act of 2008.
                    PREGNANCY AND THE AMENDED ADA

impairments.58



    II.      THE INADEQUACY OF FEDERAL LAW TARGETING WORK-
             PREGNANCY CONFLICTS

                  A. The Pregnancy Discrimination Act

         In theory, the conclusion of some courts that the Pregnancy
Discrimination Act (PDA) ―obviates the need for pregnancy-related
discrimination to also be covered under the ADA‖59 should be correct. The
PDA‘s disparate impact theory of discrimination should require employers
to justify the business necessity of employment practices (such as inflexible
lifting requirements) that fall more harshly on pregnant workers than others.
In practice, however, few PDA plaintiffs have successfully used the
disparate impact theory of discrimination to reshape the workplace to be
more hospitable to pregnancy.60        One explanation for PDA plaintiffs‘

    58
         Cf Martinez v. Labelmaster, No. 96 C 4189, 1998 WL 786391 at *8 (N.D. Ill. Nov.
6, 1998) (reasoning that ―If pregnancy itself is not an impairment for purposes of the ADA,
it is counterintuitive to hold that a general condition of pregnancy, which is not a medical
complication with regard to plaintiff's particular pregnancy, is an impairment‖); see id.
(reasoning that the plaintiffs‘ lifting restriction ―was a general condition of pregnancy, not
a complication unique to Martinez‘s pregnancy‖ and thus she did not have an impairment).
      59
         Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119 (D.N.H. 1995); see also
Kennebrew v. N.Y. City Hous. Auth., No. 01 CIV 1654 (JSR) (AJP), 2002 WL 265120, at
*18 (S.D.N.Y. Feb. 26, 2002) (―Since Title VII, as amended by the Pregnancy
Discrimination Act, 42 U.S.C. § 2000e(k), forbids discrimination on the basis of
pregnancy, it would be redundant to interpret the ADA as covering mere pregnancy as
well.‖)); Walsh v. Food Supply, Inc., 96-677-CIV-ORL-18, 1997 WL 401594 (M.D. Fla.
Mar. 19, 1997) Congress enacted the ADA knowing full well that it had already created
protection from employment discrimination based upon pregnancy. Thus, nothing but
redundancy would be gained by holding that discrimination in employment because of
pregnancy or related conditions was actionable under the ADA as well.‖); Johnson v. A.P.
Prods., Ltd., 934 F. Supp. 625, 627 (S.D.N.Y. 1996) (―Title VII and the PDA specifically
covered employment discrimination on the basis of pregnancy, thereby obviating the need
to extend the coverage of the ADA to protect pregnancy and related medical conditions.‖);
Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995)(―The
existence of both Title VII and the Pregnancy Discrimination Act obviate the need to
extend the coverage of the ADA to protect pregnancy and related medical conditions.‖).
      60
         ________ Grossman, ____________ (observing that given ―the incredibly small
number of cases in which pregnant workers have prevailed on disparate impact claims, it
seems fair to conclude that the theory provides little meaningful protection for pregnant
workers‖); Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L.
REV. 701, 751 (2006) (noting that ―pregnancy cases typically fail under the disparate
impact approach‖); __________, 115 Harv. L. Rev. 642, 662-63 (2001) (―It is almost as if
                   PREGNANCY AND THE AMENDED ADA                                         17

limited success is that PDA disparate impact claims—unlike ADA claims—
require proof that a challenged employment practice affects not only the
plaintiff, but pregnant women as a group.61 This normally requires the
plaintiff to demonstrate a statistically significant difference between the
practice‘s effect on pregnant and nonpregnant workers. For many
plaintiffs—particularly those in male-dominated professions—the number
of similarly situated pregnant workers in the employer‘s workforce is too
small to make this statistical showing.62 Additionally, relying on the PDA‘s
requirement that employers treat pregnant workers ―the same‖ as other
workers,63 Judge Posner famously concluded in Troupe v. May Dep’t Stores
Co. that ―properly understood,‖ the PDA permits employers to treat
pregnant workers ―as badly as they treat similarly affected but nonpregnant
employees.‖64 Although Troupe was not a disparate impact case, Posner‘s
reading of the PDA has led other courts to restrict the scope of pregnancy
disparate impact claims.65 Accordingly, as interpreted by many courts,
PDA plaintiffs typically cannot use the disparate impact theory of
discrimination to challenge an employer‘s refusal to accommodate them.

the very existence of the disparate impact branch of liability under Title VII is being
ignored.‖).
      61
         Garcia v. Woman's Hosp. of Texas 97 F.3d 810, 813 (C.A.5 (Tex.),1996) (―It
would, of course, be insufficient for a claim under Title VII if Garcia were the only
pregnant woman adversely affected; she must show that pregnant women as a group would
be [adversely affected]‖)
      62
         See ____ Grossman _______, (noting that plaintiffs are frequently unsuccessful in
making the requisite statistical showing, often because ―the sample is just too small,
particularly in so-called non-traditional occupations for women [where i]t is unlikely that
enough pregnant women will have been adversely affected by any particular policy to show
a statistically significant impact.‖); Lang, 107 F.3d at 1314 (finding ―no evidence ... of a
disproportionately adverse impact on pregnant women‖ in part because employee conceded
that employer was too small for statistical analysis).
      63
         42 U.S.C. § 2000e(k) [Title VII § 701(k)]
      64
         Troupe v. May Dep‘t Stores Co., 20 F.3d 734, 735-36 (7th Cir. 1994) (citations
omitted).
      65
         See. e.g., Serednyj v. Beverly Healthcare LLC, 2:08-CV-4 RM, 2010 WL 1568606
(N.D. Ind. Apr. 16, 2010) (explaining that ―the PDA doesn‘t cover a woman suffering
pregnancy complications when she requests accommodations unless accommodations are
provided to similarly situated non-pregnant employees.‖); Sussman v. Salem, Saxon &
Nielsen, P.A., 153 F.R.D. 689, 692 (M.D. Fla. 1994) (―[T]he Pregnancy Discrimination
Act was not intended to provide accommodations to pregnant employees when such
accommodations rise to the level of preferential treatment.‖); Dormeyer v. Comerica Bank-
Ill., 223 F.3d 579, 583 (7th Cir. 2000); Armstrong v. Flowers Hospital, Inc., 33 F.3d 1308,
1316-17 (11th Cir. 1994); Mary Crossley, The Disability Kaleidoscope, 74 Notre Dame L.
Rev. 621, 675-76 (1999) (―the PDA, unlike the ADA, simply prohibits differential
treatment based on pregnancy, but does not impose any obligation to provide
accommodations for employees whose pregnancy-related conditions affect their ability to
perform their job in the manner required by their employer.‖).
                    PREGNANCY AND THE AMENDED ADA

They must instead prove that their employer‘s refusal to accommodate them
demonstrates an intentional decision to treat pregnant workers less
favorably than similarly situated nonpregnant workers.66
        Unfortunately, the ADAAA may create a new obstacle to pregnant
workers‘ efforts to use the PDA to obtain accommodations in this latter
manner. By bringing persons with work limitations similar to pregnancy
into the ADA‘s protected class, the ADAAA provides employers what one
court recently termed an ―indisputably pregnancy-blind‖ justification for
treating pregnant workers less favorably than persons with comparable
temporary work limitations.67 For example, in Young v United Parcel
Service, a UPS delivery driver requested a temporary light duty assignment
to accommodate her doctor‘s recommendation that she not continually lift
items that weigh more than 20 pounds during her pregnancy.68 Young
attempted to prove that pregnancy-based animus motivated UPS‘s refusal to
provide her a light duty assignment by showing that UPS had provided
light-duty assignments to nonpregnant employees with high blood pressure
and diabetes.69 The court held, however, that Young‘s PDA claim failed as
a matter of law because UPS‘s disparate treatment of Young appeared to
turn on a rationale other than pregnancy animus: unlike the workers UPS
provided light-duty work, Young was not a member of the ADA‘s protected
class.70 The court reasoned that workers with ADA disabilities ―are not
appropriate comparators [to raise an inference that UPS acted on the basis
of pregnancy animus when it denied Young‘s request for light duty work]

    66
        ―If Congress intended to equate pregnancy with a temporary disability under the
ADA, it afforded pregnant women precious little protection when it enacted the PDA.‖ 129
F.3d 290, 304 (3rd Cir. 1997) (McKee, J., dissenting).
     67
        Young v. United Parcel Service, Inc., No. DKC 08-2586, 2011 WL 665321 (D. Md.
February 14, 2011).
     68
        Young v. United Parcel Service, Inc., No. DKC 08-2586, 2011 WL 665321 (D. Md.
February 14, 2011).
     69
        Young v. United Parcel Service, Inc., No. DKC 08-2586, 2011 WL 665321 (D. Md.
February 14, 2011).
     70
        Young v. United Parcel Service, Inc., No. DKC 08-2586, 2011 WL 665321 (D. Md.
February 14, 2011). See also Serednyj v. Beverly Healthcare LLC, No. 2:08-CV-4 RM,
2010 WL 1568606, at *7 (N.D. Ind. Apr. 16, 2010) (―[T]he company doesn‘t provide
restricted or limited duty to employees with non-work related injuries or conditions unless
the employee was a qualified individual with a disability under the Americans with
Disabilities Act. This policy is pregnancy-blind, which is all that the PDA and Title VII
require, and so is lawful on its face.‖). Similarly, several circuit courts have held that an
employer‘s voluntary decision to reasonably accommodate workers who have temporary
work limitations due to on-the-job injuries (but not work limitations, including pregnancy,
that are acquired off the job) cannot, as a matter of law, raise an inference of pregnancy-
based animus. See Reeves v. Swift Transp. Co., 446 F.3d 637, 638-39 (6th Cir. 2006);
Urbano v. Cont‘l Airlines, Inc., 138 F.3d 204 (5th Cir. 1998); Spivey v. Beverly Enters.,
Inc., 196 F.3d 1309 (11th Cir. 1999).
                    PREGNANCY AND THE AMENDED ADA                                          19

because Young was ineligible for ADA accommodation.‖71           Had UPS
gratuitously provided light duty assignments to nonpregnant persons outside
the ADA‘s protected class, Young‘s argument that UPS violated the PDA
by failing to similarly accommodate her might have prevailed. However,
now that the ADAAA‘s expansion of the ADA‘s protected class legally
requires employers to accommodate nonpregnant employees with work
limitations similar to pregnancy, PDA plaintiffs may have greater difficulty
proving that pregnancy animus motivated employers‘ decisions to treat
them less favorably that nonpregnant employees with similar work
limitations.72


                  B. The Family Medical Leave Act

        Like the Pregnancy Discrimination Act, the Family Medical Leave
Act also does not provide the types of accommodations necessary to enable
many workers to continue working during their pregnancies. The FMLA
provides eligible workers (approximately 62% of the population) up to
twelve weeks of unpaid leave when their pregnancy (or another ―serious
health condition,‖ or the need to care for a new child or ill family member)
makes them unable to conform to all of their employer‘s work rules.73
Because FMLA leave is unpaid, the primary benefit is job security: if the

    71
        Young v. United Parcel Service, Inc., No. DKC 08-2586, 2011 WL 665321 (D. Md.
February 14, 2011).
          72
             Ironically, the literal text of the PDA might appear to suggest that the ADAAA
would help, rather than harm, PDA plaintiffs. The PDA provides that ―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.‖ 42 U.S.C. § 2000e(k) [Title VII § 701(k)]           Read literally, this
language would appear to require employers to provide pregnant workers the
accommodations the ADAAA now requires employers to provide workers with similar
short term work limitations. Cf. Matizze (arguing that the EEOC‘s exclusion of pregnancy
from the ADA‘s protected class conflicts with the PDA‘s requirement that pregnant
workers be treated the same as other persons similar in their ability or inability to work).
     73
        29 U.S.C. § 2601. Only 62% of employees are eligible for FMLA leave because the
FMLA does not cover employers who have less than 50 employees in a 75-mile radius and
employees who have worked for their current employer less than one year or who have
worked less than 1250 hours (approximately 25 hours per week) in the past year. 29
U.S.C. § 2611 (4)(A)(1); David Cantor et. al., Dep‘t of Labor, Balancing the Needs of
Families and Employers: Family and Medical Leave Surveys 2000 Update tbl.A2-3.1
(2000),                                          available                                   at
http://www.webharvest.gov/peth04/20041118135457/http://www.dol.gov/asp/fmla/APPX-
A-2-TABLES.htm (noting that, in 2000, 23.3% of employees worked at sites not covered
by the FMLA and 14.9% of employees at covered worksites were ineligible for FMLA
leave).
                  PREGNANCY AND THE AMENDED ADA

worker is able to fully conform to her employer‘s work expectations at the
conclusion of the FMLA leave, the employer must reinstate the worker in
the same or similar job.74 So long as an employee‘s total leave time does
not exceed twelve weeks in a twelve month period, an employee may use
FMLA leave in a continuous period or intermittently.75
        During pregnancy, the intermittent feature of FMLA leave may
function similarly to an ADA accommodation by enabling some employees
to continue working during their pregnancy with a reduced schedule. For
example, in Whitaker v. Bosch Braking Systems Div. of Robert Bosch Corp.,
the plaintiff‘s job, which ―consisted of standing on her feet at all times,‖76
involved mandatory overtime.77 Because Whitaker‘s doctor advised her
that if she ―spent too much time on her feet at work she would risk
hypertension and premature delivery,‖ Whitaker requested FMLA leave in
order to limit her work time to eight hours per day, five days per week.78
The court held that her employer‘s insistence that she stop working
altogether rather than work a reduced schedule violated the FMLA.79
Although ADA coverage of pregnancy would have required Whitaker‘s
employer to consider the feasibility of other accommodations—such as
permitting Whitaker to use a stool while working her usual hours—the
FMLA enabled Whitaker to continue working, albeit at reduced hours and
pay.
        While the FMLA‘s reduced schedule feature at least partially
alleviates work conflicts for some pregnant workers, FMLA altogether fails
pregnant workers whose job-pregnancy conflicts cannot be resolved with a
reduced schedule. Such conflicts may include difficulties conforming to an
employer‘s lifting requirements and ―no water consumption‖ policies. It
may also involve exposure to workplace environmental hazards such as
carbon monoxide fumes, chemicals harmful to fetal development, and
extremely high heat..80 Rather than requiring employers to consider the

    74
        29 U.S.C. § 2614(a). Another important benefit is that employment benefits—such
as health insurance—continue during the leave so long as the employee continues to make
her required contributions. Matt: please get statutory citation for this.
     75
        29 C.F.R. § 825.200(a), 825.117.
     76
        Whitaker v. Bosch Braking Systems Div. of Robert Bosch Corp. 180 F.Supp.2d
922, 924 (W.D.Mich. 2001)
     77
        Whitaker v. Bosch Braking Systems Div. of Robert Bosch Corp. 180 F.Supp.2d
922, 924 (W.D.Mich.,2001)
     78
        Whitaker v. Bosch Braking Systems Div. of Robert Bosch Corp. 180 F.Supp.2d
922, 924 (W.D.Mich.,2001)
     79
        Whitaker v. Bosch Braking Systems Div. of Robert Bosch Corp. 180 F.Supp.2d
922, 924 (W.D.Mich.,2001). The court awarded her the difference between the amount she
would have earned working a forty-hour week and the amount paid to her through the
company‘s short term disability program. Id.
     80
         See Treadaway v. Big Red Powersports, LLC 611 F.Supp.2d 768,
                   PREGNANCY AND THE AMENDED ADA                                        21

feasibility of making even minor adjustments to the workplace to
accommodate these workers, the FMLA empowers employers to place
employees whose pregnancies make them unable to perform even a small
portion of their usual job functions on involuntary unpaid leave.81
        In addition to forcing workers capable of productive work onto
unpaid leave without any consideration of the feasibility of workplace
accommodations, the FMLA also fails to account for the reality that many
conflicts between pregnancy and work may persist beyond the 12 week
leave period the FMLA provides. For example, early in her pregnancy,
Suzanne Harvender, a lab technician, requested a change in her job duties to
avoid exposure to chemicals harmful to fetal development.82 Rather than
requiring Harvender‘s employer to consider the feasibility of providing this
accommodation, the FMLA enabled Harvender‘s employer to place
Harvender on involuntary unpaid leave.83 Had Harvender not suffered a
miscarriage that enabled her to resume her usual job duties within before
the 12 week FMLA leave period expired, she would have lost her right to be
reinstated.84
        In short, while FMLA leave is quite helpful for workers who can
reserve the majority of the twelve week period for childbirth, recovery, and
care of their newborn child, persons unable to conform to their employer‘s
standard work rules during pregnancy itself frequently experience the
FMLA as ―a means by which an employer can move a woman out of the
workplace.‖85 The FMLA deems employees unable to conform to their
employer‘s work rules ―incapacitated‖ 86 and ―unable to work‖87 even when

776 (E.D.Tenn.,2009) (holding that FMLA leave was appropriate when dangerous levels of
carbon monoxide present were present in the pregnant plaintiff‘s office at the all-terrain
vehicle factory and showroom where she worked).
     81
         Harvender v. Norton Co. 1997 WL 793085, 1 (N.D.N.Y.) (N.D.N.Y.,1997)
(upholding employer decision to force pregnant employee who requested accommodations
unto unpaid FMLA leave).
     82
        Harvender v. Norton Co. 1997 WL 793085, 1 (N.D.N.Y.) (N.D.N.Y.,1997)
     83
        Harvender v. Norton Co. 1997 WL 793085, 1 (N.D.N.Y.) (N.D.N.Y.,1997) (noting
that the employer ―was under no obligation under the FMLA to provide alternative
employment within the company to accommodate Harvender‖)/
     84
        Her employer told her that if she were unable to return to her job by the end of the
12 week FMLA leave period, her employment would be terminated. Harvender v. Norton
Co. 1997 WL 793085, 1 (N.D.N.Y.) (N.D.N.Y.,1997) Matt: please get quote from case
saying this..
     85
         22 Wis. Women's L.J. 61, 77 -78 (.Spring2007); see also 50 Me. L. Rev. 225, 247 -
248 (.1998) (arguing that the FMLA ―reinforces the stereotyped image of pregnant women
as unfit for work.‖). 2009 Wis. L. Rev. 1093, 1127 -1152 (.2009) (―although the FMLA
may provide pregnancy disability leave, it does not require employers to structure work so
that pregnant women can continue working during their pregnancies‖).
     86
        29 CFR § 825.120(a)(4); 29 C.F.R. § 825.114(a)(2)(ii).
     87
        29 C.F.R. § 825.114(a)(2)(i).
                    PREGNANCY AND THE AMENDED ADA

it is their employer‘s inflexible work rules, rather than their pregnancy, that
prevents their continued employment. In this way, the FMLA permits
workplace policies and practices that exclude pregnant workers to remain
unchallenged. By enabling employers to exclude pregnant workers from
the workplace without regard to the feasibility of adjusting the workplace to
accommodate pregnancy, the FMLA perpetuates the historical view that the
incompatibility between pregnancy and the workplace is located solely in
the pregnant worker.
         If, by contrast, the ADA covered job-pregnancy conflicts, many
workers would likely request ADA accommodations rather than take FMLA
leave. By requiring employers to engage in an interactive process to
examine the feasibility of adjusting work rules and job assignments, the
ADA might spur greater workplace flexibility that would enable a greater
number of employees to continue working throughout their pregnancies.88
ADA ―reasonable accommodations‖89 may include making adjustments to
existing facilities, job restructuring, modified work schedules, or
reassignment to a vacant position, and other similar accommodations.90
Although the scope of the ADA‘s accommodation mandate ―remains


    88
        See 29 C.F.R. § 825.702(d)(1) (―If FMLA entitles an employee to leave, an
employer may not, in lieu of FMLA leave entitlement, require an employee to take a job
with a reasonable accommodation. However, ADA may require that an employer offer an
employee the opportunity to take such a position.‖); Timmons v. General Motors Corp.
469 F.3d 1122, 1128 (C.A.7 (Ill.),2006) (concluding that placing an individual
―involuntarily on disability leave was an adverse employment action‖ under the ADA); 29
C.F.R. § 1630.2(l)(1) (same); Clark v. Germantown Hosp. and Medical Center, 2001 WL
122221, 3 (E.D.Pa.) (E.D.Pa.,2001) (―Defendant contends that its statutory duty to
reasonably accommodate Plaintiff's disability was satisfied when, upon receiving a note
from Plaintiff's physician requesting an accommodation, Defendant instead placed Plaintiff
on unpaid leave under the FMLA. The court does not agree.‖).
     89
        42 U.S.C. § 12112(b) (the term ―discriminate against a qualified individual on the
basis of disability‖ includes . . . (5)(A) not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business of such
covered entity; or (B) denying employment opportunities to a job applicant or employee
who is an otherwise qualified individual with a disability, if such denial is based on the
need of such covered entity to make reasonable accommodation to the physical or mental
impairments of the employee or applicant;
90
   42 U.S.C. § 12111(9) (―The term ‗reasonable accommodation‘ may include (A) making
existing facilities used by employees readily accessible to and usable by individuals with
disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment
to a vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar accommodations for individuals with
disabilities.‖).
                    PREGNANCY AND THE AMENDED ADA                                          23

severely underdeveloped,‖91 the interpretative guidance to the EEOC‘s
ADA regulations states that ―[i]n general, an accommodation is any change
in the work environment or in the way things are customarily done that
enables an individual with a disability to enjoy equal employment
opportunities.‖92


III.        CHARACTERIZING PREGNANCY AS AN ADA DISABILITY

       A. Sources of Continued Resistance

        Although the ADA now covers short term conditions that impose
physical limitations similar to pregnancy, courts and the EEOC continue to
hold that the ADA does not cover physical limitations resulting from
pregnancy.93 In documents issued after the ADAAA‘s enactment, the
EEOC reiterates its longstanding position that ―[b]ecause pregnancy is not
the result of a physiological disorder,‖94 it ―is not an impairment and
therefore cannot be a disability.‖95 To further emphasize that a pregnant
worker must identify something diagnosably wrong with her body before
she may request an ADA accommodation, the EEOC has also revised its
       91
        Mark Weber, Unreasonable Accommodations and Due Hardship, 62 Fla. L. Rev.
1119, 1122 (2010).
     92
        29 C.F.R. pt. 1630 app. § 1630.2(o).
     93
        Spees v. James Marine, Inc., 617 F.3d 380, 396 (6th Cir. 2010) (―Because pregnancy
is not the result of a physiological disorder, it is not an impairment.‖); Marchioli v. Garland
Co., Inc., No. 5:11–cv–124, 2011 WL 1983350, 7 (N.D.N.Y.) (N.D.N.Y., May 20, 2011)
(pregnancy, by itself, does not constitute a disability under the ADA); Appel v. Inspire
Pharmaceuticals, Inc., 712 F. Supp. 2d 538, 548 (N.D. Tex. 2010) (―pregnancy alone is not
a disability under the ADA‖); Hogan v. Ogden, CV-06-5078-EFS, 2008 WL 2954245
(E.D. Wash. July 30, 2008) (―Courts have generally held that pregnancy, and pregnancy-
related complications, do not qualify as ‗disabilities‘ under the Acts.‖); Wenzlaff v.
NationsBank, 940 F. Supp. 889, 890 (D.Md.1996) (―With near unanimity, federal courts
have held that pregnancy is not a ‗disability‘ under the ADA.‖); 29 C.F.R. pt. 1630 app. §
1630.2(h) (―conditions, such as pregnancy, that are not the result of a physiological
disorder are . . . not impairments‖) see also EEOC Compliance Manual, § 902.2(c)(3)
(―Because pregnancy is not the result of a physiological disorder,‖ it ―is not an impairment
and therefore cannot be a disability‖); 29 C.F.R. pt. 1630 app. § 1630.2(h) (―conditions,
such as pregnancy, that are not the result of a physiological disorder are . . . not
impairments.‖).
94
   Compliance Manual, § 902.2(c)(3).
     95
        See EEOC, Questions and Answers on the Final Rule Implementing the ADA
Amendments Act of 2008; EEOC, Questions and Answers for Small Businesses: The Final
Rule Implementing the ADA Amendments Act of 2008
     The importance the EEOC places on excluding pregnancy from the ADA‘s protected
class is illustrated by the EEOC‘s discussion of pregnancy in each of these informal
documents which only have 33 and 28 total questions, respectively.
                    PREGNANCY AND THE AMENDED ADA

pre-ADAAA statement which provided that ―[c]omplications resulting from
pregnancy . . . are impairments‖96 to indicate that ADA coverage extends
only to ―pregnancy-related impairment[s],‖97 such as ―gestational
diabetes.‖98 This change may be an attempt to dissuade courts from
characterizing the typical effects of pregnancy—such as an inability to
safely lift over 50 pounds—as pregnancy ―complications‖ and thus
impairments that may qualify an individual for coverage.99
         The EEOC‘s refusal to employ standard interpretative principles to
its treatment of pregnancy further demonstrates the EEOC‘s commitment to
excluding pregnancy from the ADA‘s protected class. For example, the
EEOC‘s conclusion that ―conditions, such as pregnancy, that are not the
result of a physiological disorder are . . . not impairments,‖ 100 conflicts with
the EEOC‘s formal regulations, which define the term ―physical
impairment‖ as ―[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems.‖101
By reading the word ―conditions‖ out of the regulation, the EEOC violates
the ―cardinal rule of statutory interpretation that no provision should be
construed to be entirely redundant.‖102 The EEOC also ignores the negative

    96
          See EEOC Compliance Manual, Vol.2, EEOC Order 915.002, § 902.2(c)(3).
EEOC         COMPLIANCE          MANUAL,          §   902.2(c)(3),    available     at   http:
www.eeoc.gov/policy/docs/902cm.html (―Complications resulting from pregnancy,
however, are impairments‖).
      97
         76 FR 980.
      98
         See Questions and Answers on the Final Rule Implementing the ADA Amendments
Act of 2008; EEOC, Questions and Answers for Small Businesses: The Final Rule
Implementing the ADA Amendments Act of 2008.
      99
         Cf Martinez v. Labelmaster, No. 96 C 4189, 1998 WL 786391 at *8 (N.D. Ill. Nov.
6, 1998) (reasoning that ―If pregnancy itself is not an impairment for purposes of the ADA,
it is counterintuitive to hold that a general condition of pregnancy, which is not a medical
complication with regard to plaintiff's particular pregnancy, is an impairment‖); see id.
(reasoning that the plaintiffs‘ lifting restriction ―was a general condition of pregnancy, not
a complication unique to Martinez‘s pregnancy‖ and thus she did not have an impairment).
100
    29 C.F.R. pt. 1630 app. § 1630.2(h).
      101
           29 CFR § 1630.2(h); see Samuel R. Bagenstos, Subordination, Stigma, and
―Disability,‖ 86 Va. L. Rev. 397, 407 n. 29 (2000) (noting that these regulations ―directly
track the definition of ‗impairment‘ in the Rehabilitation Act regulations, which Congress
incorporated by reference in the ADA‖).
      102
          Kungys v. United States, 485 U.S. 759, 778 (1988) (plurality opinion by Scalia, J.);
see also Lamb v. Thompson 265 F.3d 1038, 1052 n. 16 (C.A.10 (Colo.),2001) (―Even if
we were to assume the statute is ambiguous, we would conclude in the second step of
Chevron that the [agency]‘s interpretation of § 1604(m)(2) cannot stand because it renders
words in the statute ―mere surplusage.‖ ―Although we afford deference to the [agency's]
interpretation of a statute under [its] purview, we cannot overlook an interpretation that
flies in the face of the statutory language.‖). See also Sutton, 130 F.3d at 899 n.3 (―while
the EEOC's Interpretive Guidance may be entitled to some consideration in our analysis, it
does not carry the force of law and is not entitled to any special deference under
                   PREGNANCY AND THE AMENDED ADA                                         25

inference that might be drawn from Congress‘s choice to exclude certain
other physical traits, such as age, homosexuality, and left-handedness, from
the ADA‘s scope, while never suggesting a similar exclusion for
pregnancy.103
        The EEOC further illustrates the importance it places on excluding
pregnancy from the ADA‘s protected class by revealing its support, as a
general matter, for pregnancy accommodations. In the EEOC‘s 2009 ―Best
Practices‖ document, which encourages employers to ―go beyond federal
nondiscrimination requirements [in order to] to remove barriers to equal
employment opportunity,‖ the EEOC suggests that employers ―[r]eassign
job duties that employees are unable to perform because of pregnancy.‖104
As an example, the EEOC indicates that when a pregnant worker‘s ―doctor
recommends a 15 pound lifting restriction during her pregnancy,‖ an
employer should respond ―by reassigning her heavy lifting duties to one of
her co-workers and assigning [the pregnant worker] some of the co-
worker‘s duties.‖105        This support, in principle, for pregnancy
accommodations illustrates that the EEOC‘s resistance to pregnancy
accommodations under the ADA does not arise from the view that
pregnancy accommodations are inappropriate or unnecessary, but instead
from the view that the ADA is an inappropriate vehicle for obtaining them.
        A partial explanation for the EEOC‘s reluctance to conclude the
ADA provides pregnancy-related accommodations may be a desire to keep
sex discrimination and disability discrimination in separate analytical boxes.
Because the feminist movement and the disability rights movement are
distinct cultural movements that have generated separate statutory schemes,
it may appear odd to provide workers pregnancy accommodations within


Chevron.‖). But see Statement of the Managers to Accompany S. 3406, The Americans
with Disabilities Act Amendments Act of 2008 (―the bill clarifies that the agencies that
currently issue regulations under the ADA have regulatory authority related to the
definitions contained in Section 3.‖); Gonzales v. Oregon, 546 U.S. 243, 255 (2006) (―An
administrative rule may receive substantial deference if it interprets the issuing agency's
own ambiguous regulation.‖); Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 359 (1989) (an agency‘s interpretations of its own regulations are ―controlling‖ unless
they are ―plainly erroneous or inconsistent with the regulation.‖).
     103
         See Hinck v. United States, 127 S.Ct. 2011, 2015 (2007) (relying on expressio
unius est exclusio alterius); Solid Waste Agency v. Army Corps of Eng‘rs, 531 U.S. 159
(2001) (relying on expressio unius est exclusio alterius); 42 U.S.C § 12211(a); SENATE
REPORT NO. 101-116; HOUSE REPORT NO. 101-485(II).
     104
         EEOC, EMPLOYER BEST PRACTICES FOR WORKERS WITH CAREGIVING
RESPONSIBILITIES              (2009),       http://www.eeoc.gov/policy/docs/caregiver-best-
practices.html.
     105
         EEOC, EMPLOYER BEST PRACTICES FOR WORKERS WITH CAREGIVING
RESPONSIBILITIES              (2009),       http://www.eeoc.gov/policy/docs/caregiver-best-
practices.html.
                   PREGNANCY AND THE AMENDED ADA

the framework of disability rights law. The EEOC may also view the PDA
and FMLA‘s limited capacity to enable pregnant women to continue
working during their pregnancies as appropriately reflecting political
compromise about the extent employers should adjust the workplace to
accommodate pregnancy. The EEOC may reason that had Congress been
sufficiently motivated to provide pregnant workers the full scope of
accommodations the ADA provides, it might have amended the PDA or
FMLA to provide them. The problem with this assumption, however, is
that the FMLA‘s partial effectiveness in resolving pregnancy-work conflicts
for some women frequently obscures, for political purposes, the reality that
other women—particularly women in low income work who have a limited
political voice—need additional structural reform to continue working
during their pregnancies.
        Judicial and agency reluctance to characterize pregnancy as an ADA
disability may also reflect unstated concerns that permitting pregnant
workers to argue they have ADA disabilities will revive exclusionary and
paternalistic attitudes toward pregnancy. Despite the ADA‘s goal to
dissociate ―unable to work‖ connotations from the term ―disability‖ and to
emphasize that a large portion of the vocational disadvantages persons with
disabilities experience are socially imposed rather than inherent in the
individual, feminists hesitate to associate pregnancy with disability. 106 For
example, one commentator who favors accommodations for pregnant
workers opposes using the ADA to obtain them because she fears that
―bringing pregnancy under the ADA would reinvigorate the stereotype of
pregnant women as disabled and not fit for work.‖107 Similarly, other
commentators suggest that ―defining pregnancy itself as a disability would
reverse years of argument and pressure by many women against traditional
stereotypes of this natural function‖108 and that ―[p]roviding
accommodation for pregnancy via the ADA may effectively codify the
concept of the workplace as a male environment in which women can
participate only if assisted.‖109 Perhaps because of these concerns, no
women‘s organizations advocated for ADA coverage of pregnancy in


        106
              15 Berkeley J. Emp. & Lab. L. 335 (.1994) (―defining pregnancy itself as a
disability would reverse years of argument and pressure by many women against traditional
stereotypes of this natural function‖)
          107
              50 Me. L. Rev. 225, 250-51 (1998); see also Matizze, Note, 82 Geo. L.J. 193
(1993) (―The claim that the rights and needs of pregnant workers should be sought under
disability law doctrines, instead of under theories of gender discrimination, invites
suspicion. Although many feminists wish to secure tangible benefits for pregnant workers,
they fear the characterization of pregnancy as a disability.‖).
     108
         15 Berkeley J. Emp. & Lab. L. 335, 358 n. 167 (1994).
109
    45 U. Kan. L. Rev. 241, 264 (1996)
                   PREGNANCY AND THE AMENDED ADA                                       27

EEOC‘s rulemaking proceedings for the original ADA110 and in the
regulatory process following Congress‘s enactment of the ADAAA, only
one women‘s organization submitted comments in relation to pregnancy.111
That organization implicitly conceded that a pregnant worker must have a
medical professional identify something wrong with her body before the
ADA enables her to request a workplace accommodation by advocating
only that the EEOC make more explicit its conclusion that the ADA covers
pregnancy-related impairments.112


    B. The ADAAA Repositions Pregnancy

         The ADA‘s expansion of the ADA‘s protected class should alleviate
concerns that the ADA‘s coverage of pregnancy will revive exclusionary
and paternalistic stereotypes associated with pregnancy. Prior to the
ADAAA, the severity and durational thresholds courts imposed on the ADA
were so high that a 2007 study suggested that the population of persons
eligible for ADA coverage may have been roughly comparable to the
population of persons the Social Security Administration deems unable to
engage in substantial gainful employment.113 Because the physical
limitations that accompany most pregnancies are compatible with a large
range of work opportunities, feminists understandably resisted
characterizing pregnancy as an ADA disability.114 Doing so might have
indeed revived exaggerated stereotypes about the physical effects of
pregnancy. However, now that the ADA‘s scope encompasses diabetes,
arthritis, asthma, and back problems that impose short term lifting
restrictions, there is little danger than placing pregnancy in the ADA‘s
protected class will revive assumptions that pregnancy precludes productive
work. As the ADAAA‘s expanded protected class emphasizes, the ADA‘s
goal is not to determine which persons have limitations so severe that they

    110
         Matizze, Note, 82 Geo. L.J. 193, 193 (1993).
    111
         Letter from Legal Momentum, the Women‘s Legal Defense and Education Fund to
EEOC Executive Officer Stephen Llewellyn (Nov. 19, 2009) (copy on file with the author).
     112
         Id.
     113
         Ruth Colker, The Mythic 43 Million Americans with Disabilities, 49 WM. & MARY
L. REV. 1, 7 (2007) (using Social Security Administration and Census Bureau data to
conclude that ―the approach chosen by the Court only results in about 13.5 million
Americans receiving statutory coverage, with those individuals typically being so disabled
that they are not qualified to work even with reasonable accommodations‖).
    114
        See, e.g., 50 Me. L. Rev. 225, 250-51 (1998) (noting, prior to the ADAAA, that
―[t]o qualify for ADA coverage, pregnant women will need to make their conditions appear
so severe that they are not able to undertake a normal work life. This strengthens the
stereotype that pregnant women are too disabled to be part of the workforce.‖).
                   PREGNANCY AND THE AMENDED ADA

need financial assistance but instead to remove unnecessary barriers that
frustrate the employment opportunities of persons who can work with
reasonable accommodations.
        Continued concern that the ADA‘s coverage of pregnancy will
revive exclusionary and paternalistic stereotypes associated with pregnancy
fails to acknowledge that the ADA‘s reasonable accommodation provision
is not a charitable effort to compensate for inherent physical frailties but
instead a civil rights effort to remediate workplace policies and architecture
that embody the discriminatory assumption that ADA class members are
not legitimate workforce participants. As new language added by the
ADAAA emphasizes, the ADA recognizes that ―physical and mental
disabilities in no way diminish a person‘s right to fully participate in all
aspects of society, but that people with physical or mental disabilities are
frequently precluded from doing so because of prejudice, antiquated
attitudes, or the failure to remove societal and institutional barriers.‖ 115 In
this way, the ADA reflects what sociologists have termed a ―social model‖
of disability, which suggests ―a switch away from focusing on the physical
limitations of particular individuals to the way that physical and social
environments impose limitations upon certain groups or categories of
people.‖116 Often drawing express analogies to feminist arguments that
much of the employment disadvantages women experience are due to the
fact the workplace is structured around male needs,117 disability rights
advocates who pushed for the ADA‘s passage argued that workplace
policies designed around ―the physically typical worker‖ embody an
exclusionary assumption that only physically typical persons should engage
in paid work.118 The ADA embodies this insight by, for example,

    115
         42 U.S.C. ____
  116.    MICHAEL OLIVER, SOCIAL WORK WITH DISABLED PEOPLE 23 (1983); see also
CLAIRE H. LIACHOWITZ, DISABILITY AS A SOCIAL CONSTRUCT: LEGISLATIVE ROOTS 11
(1988); MICHAEL OLIVER, THE POLITICS OF DISABLEMENT: A SOCIOLOGICAL APPROACH
10 (1990).
     117
          See, e.g., Martha Albertson Fineman, The Autonomy Myth: A Theory of
Dependency 179 (2004) (―parity, given different gendered realities, is only possible
through different treatment‖); Rosemarie Garland Thomson, Seeing the Disabled: Visual
Rhetorics of Disability in Popular Photography, in New Disability History: American
Perspectives 372 (Paul Longmore & Lauri Umansky, eds., 2001) (―Imagining disability as
ordinary, as the typical rather than the atypical human experience, can promote practices of
equality and inclusion that begin to fulfill the promise of a democratic order.‖).
118
    Americans with Disabilities Act of 1989: Hearing on H.R. 2273 Before the H. Comm. on
Education and Labor, 101st Cong. 79 (1989) (statement of Gary May, Comm‘r, Indiana
Department of Veterans‘ Affairs) (―The general thrust and motivation for adaptive
behavior by persons with disabilities has been from the ―disability as liability‖
perspective. From this perspective, the existence of a disability is a totally negative
phenomenon which must be conquered. This perspective does not fully embrace the
                    PREGNANCY AND THE AMENDED ADA                                          29

acknowledging that wheelchair users have experienced disadvantages in
securing employment due to historical decisions to construct buildings with
stairs and narrow doorways.        These design decisions reflect the
discriminatory assumption that persons who use wheelchairs would not
participate in public life.


    C. The ADAAA Reaffirms the ADA’s Emphasis on Social Responses to
         Bodily Difference

         Although the ADAAA focuses on expanding the ADA‘s protected
class rather than articulating the rationales for disability nondiscrimination
law, the ADAAA reaffirms the ADA‘s emphasis on social responses to
bodily difference. First, the ADAAA‘s ―purposes‖ provision expressly
states that the primary goal of the ADAAA is to shift courts‘ focus in ADA
litigation away from the nature of the individual plaintiff‘s medical
condition to the employer‘s response to that condition.119 Similarly, the
ADAAA realigns the wording of the ADA‘s core provision to communicate
that ―the emphasis in questions of disability discrimination [should be] on
the critical inquiry of whether a qualified person has been discriminated
against on the basis of disability, and not unduly focused on the preliminary
question of whether a particular person is even a ‗person with a disability‘
with any protections under the Act at all.‖120 Additionally, the ADAAA
highlights the ADA‘s emphasis on negative social responses to
physiological conditions by instructing courts to apply the ADA‘s

concept of individual differences and pushes for standardization and homogenization
in a society which operates from the same premise. This process is commonly
understood as fitting the square peg into the round hole. The intractability of the round
hole is accepted as a given.‖).
     119
         See ADAAA(2)(b) (―(The purposes of this Act are. . . . to convey that it is the intent
of Congress that the primary object of attention in cases brought under the ADA should be
whether entities covered under the ADA have complied with their obligations, and to
convey that the question of whether an individual's impairment is a disability under the
ADA should not demand extensive analysis.‖); see also Statement of the Managers to
Accompany S. 3406, The Americans with Disabilities Act Amendments Act of 2008
(explaining that Congress‘s intention in enacting the ADAAA is to ―move the focus from
the threshold issue of disability to the primary issue of discrimination‖).
     120
         H.R. REP. NO. 110-730, pt. 1, at 16 (2008); see also (explaining that the revision
―will be an important signal to both lawyers and courts to spend less time and energy on
the minutia of an individual‘s impairment, and more time and energy on the merits of the
case.‖ 154 CONG. REC. H6058, H6067 (daily ed. June 25, 2008) (joint statement of Reps.
Hoyer and Sensenbrenner). The cumbersome wording of the ADA‘s original text had
drawn courts‘ attention to the fact that the ADA‘s protection from disability-based
discrimination applied only to persons who qualified for membership in the ADA‘s
protected class. See 42 U.S.C. § 12112(a) (2006) (amended 2008).
                    PREGNANCY AND THE AMENDED ADA

―substantially limit[ed]‖ test to the limitations an individual would
experience absent the medication or other ameliorative measures they
employ.121 Accordingly, the ADA‘s protected class now includes, for
example, persons with high blood pressure fully controlled by medication.
This change emphasizes that the ADA‘s goal is to remediate negative social
responses to physiological conditions, regardless of whether the
physiological conditions impose inherent functional limitations.
        The ADAAA‘s expansion of the ADA‘s ―regarded as‖ coverage
similarly communicates Congress‘s goal to shift the attention in ADA
analysis away from the nature of the plaintiff‘s biological traits to the
employer‘s behavior. Persons no longer need to prove a ―substantial
limitation,‖ real or perceived, to establish membership in the ADA‘s
protected class pursuant to the ―regarded as‖ prong.122 The only restriction
on ―regarded as‖ prong membership is that the individual‘s impairment, real
or perceived, not be both ―minor‖ and expected to last ―six months or
less.‖123 This permits persons who possess only minor impairments (or no
impairments at all) to challenge employer actions motivated by disability
animus.124 Although the ADAAA does not provide persons who establish
ADA coverage solely through the ―regarded as‖ prong reasonable
accommodations,125 the ADAAA‘s expansion of the ―regarded as‖ prong
acknowledges that employers may impose disadvantages on persons whom
they perceive to have bodily differences, regardless of whether those
persons also experience a physiological disorder.126 Accordingly, persons
with purely cosmetic disfigurements, who had difficulty establishing ADA
coverage prior to the ADAA because they experienced no inherent
functional limitations, many now easily obtain protection from


    121
         Id. § 4(a). ―[t]he determination of whether an impairment substantially limits a
major life activity shall be made without regard to the ameliorative effects of mitigating
measures,‖
     122
         Plaintiffs attempting to use the ―regarded as‖ provision had little success prior to
the ADAAA because of the Supreme Court‘s conclusion that the ―regarded as‖ language
required plaintiffs to prove that their employer believed they were substantially limited in a
major life activity. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 493 (1999),
superseded in part by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553 (2008) (codified at 42 U.S.C. § 12101).
     123
         42 U.S.C. 12101(3)(b).
     124
         See Statement of Administration policy from the Office of Management and Budget
(suggesting that a person with a ―minor seasonal allergy that recurs each year‖ may
establish ADA coverage because such a condition, although minor, lasts longer than six
months).
     125
         42 U.S.C. 12201(h).
     126
         76 FR 17014 (Mar. 15, 2011) (―to qualify for coverage under the ‗‘regarded as‘‘
prong, an individual is not subject to any functional test‖).
                    PREGNANCY AND THE AMENDED ADA                                           31

discrimination under the ADA.127 This shift emphasizes that the ADA‘s
focus on removing socially-imposed barriers has little connection to
whether the persons those barriers affect also experience inherently
deleterious effects on their body‘s functioning. The ADA‘s goal is combat
social stigma attached to physical variation and to remove seemingly
neutral architectural and policy barriers to physically-variant workers that
result from the accumulated myths and stereotypes associated with physical
variation.128

    D. The ADA’s Purpose Encompasses Pregnancy

        The ADAAA‘s focus on socially-imposed disadvantage downplays
the source of the individual‘s biological variation and emphasizes that the
―abnormality‖ that matters for ADA purposes is not whether the medical
profession views a condition as abnormal; for ADA purposes, all forms of
physical variation are normal in the sense that they naturally occur in the
human population. Instead, the ADA is concerned with the workplace
policies and practices that force persons affected by these naturally
occurring physical conditions to lead abnormal lives.
        While the modern experience of pregnancy typically involves less
disadvantage than more traditional disabilities, the ADAAA‘s expansion of
the ADA‘s protected class to include persons with low stigma conditions,
like short term back problems that limit an individual‘s ability to lift more
than fifty pounds,129 suggests courts may reasonably interpret the ADA‘s
goal of remediating social disadvantages associated with biological
difference to extend to pregnancy. The fact that a condition occurs at
extremely high rates in the population no longer appears to be a viable
justification for excluding it from the ADA‘s protected class. The ADA‘s
protected class now includes all persons diagnosed with diabetes,130 8.3% of
the U.S. population131 and also likely includes many persons with

    127
         76 FR 17014 (Mar. 15, 2011) (explaining that ―it is not necessary, as it was prior to
the ADA Amendments Act, for an individual to demonstrate that a covered entity
perceived him as substantially limited in the ability to perform a major life activity in order
for the individual to establish that he or she is covered under the ‗‗regarded as‘‘ prong. . . .
To illustrate how straightforward application of the ‗‗regarded as‘‘ prong is, if an employer
refused to hire an applicant because of skin graft scars, the employer has regarded the
applicant as an individual with a disability.‖).
     128
         See H.R.Rep. No. 485, 101st Cong., 2d Sess. 30-31 (1990), reprinted in 1990
U.S.C.C.A.N. 267, 452-53.
     129
         29 C.F.R. Pt. 1630.2(j), App. (effective May 24, 2011).
     130
         29 C.F.F. 1630.2(j)(3) (including diabetes in a list of impairments that ―will, in
virtually all cases, result in a determination of coverage‖).
     131
         http://www.diabetes.org/diabetes-basics/diabetes-statistics/ (―25.8 million children
and adults in the United States—8.3% of the population—have diabetes.‖)
                    PREGNANCY AND THE AMENDED ADA

hypertension,132 31.3% of the U.S. population.133 By way of comparison,
less than 2% of the U.S. population is pregnant in any given year.134
Similarly, the fact that society generally views pregnancy as a positive
physical state does not appear to be a viable justification for excluding it
from the ADA‘s protected class.135 The ADAAA makes clear that the
ADA‘s scope extends beyond persons with conditions linked to high levels
of social stigma, such as epilepsy, mental illness, and developmental
disabilities, to include ―people with arthritis or cardiovascular disease [who]
are generally viewed positively.‖136 The ADA‘s scope also includes
persons with asthma, carpal tunnel syndrome, and osteoporosis.137
        Furthermore, the ambivalent mixture of social reactions to the
pregnant body is not entirely dissimilar from the mixture of pity,
paternalism, and antipathy directed toward persons with more traditional
disabilities. For example, just as historical ―ugly laws‖ prohibited persons
with many traditional disabilities from appearing in public view,138
historical social norms required pregnant women to hide indoors during the
late stages of their pregnancy because of the societal belief that ―it was
obscene for a pregnant woman to be seen in public.‖139 Although modern


    132
         EEOC Notice of Proposed Rulemaking, 74 FR 48442 (listing high blood pressure
among ―Examples of Impairments that May Be Disabling for Some Individuals But Not
For Others‖)
133
    CDC. Health, United States, 2008. Hyattsville, MD: National Center for Health
Statistics; 2008, available at http://www.cdc.gov/bloodpressure/faqs.htm#4
     134
         http://www.americanpregnancy.org/main/statistics.html
          135
               See Sharona Hoffman, The Importance of Immutability in Employment
Discrimination Law, 52 William and Mary Law Review 1483, 1504 (2011) ―because the
protected class now includes individuals with any physical or mental impairment other than
minor or transient ones, many covered workers will not have conditions that are historically
associated with discrimination‖).
     136
         Sharona Hoffman, Corrective Justice and Title I of the ADA, 52 Am. U. L. Rev.
1213, 1240 (2003); see also id. (―[N]ot all individuals with ‗disabilities,‘ as they are
currently defined, have been subjected to a history of discrimination, nor are they
consistently singled out for negative treatment by contemporary society.‖).
     137
         29 C.F.R. 1630.2(h) App. (―various medical conditions commonly associated with
age, such as . . . osteoporosis or arthritis would constitute impairments within the meaning‖
of the ADA);        EEOC Notice of Proposed Rulemaking, 74 FR 48442 (listing carpel
tunnel syndrome and asthma among ―Examples of Impairments that May Be Disabling for
Some Individuals But Not For Others‖).
     138
         See, e.g., Chicago, Ill., Mun. Code § 36–34 (1966) (repealed 1974) (―No person
who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or
disgusting object or improper person to be allowed in or on the public ways or other public
places in this city, shall therein or thereon expose himself to public view.‖)
     139
           12 Mich. J. Gender & L. 163, 171 -172 (.2005) (noting that the ―Victorian view
[was] that it was obscene for a pregnant woman to be seen in public. Having an obviously
pregnant woman present in the workplace caused embarrassment and discomfort for other
                    PREGNANCY AND THE AMENDED ADA                                        33

American culture more frequently celebrates the pregnant form, women in
the late stages of pregnancy continue to encounter employers‘ beliefs that
their physical appearance will be unappealing to customers and clients.140
Similarly, pregnancy, like traditional disabilities, has often led to
paternalistic policies excluding pregnant women from paid work and other
aspects of public life.141 Up until the 1970s, many employers had rigid
rules requiring employees to leave work at a certain stage in their
pregnancy.142 Like similar policies for persons with disabilities, these
policies embodied ―an irrebuttable presumption of physical
incompetency.‖143
        Feminists‘ success in reshaping cultural assumptions to
acknowledge that pregnancy is a healthy biological state rather than a
physical defect should not close the ADA‘s doors to pregnant workers who
continue to experience socially imposed disadvantages in the form of
workplace environmental hazards and inflexible workplace rules. Rather
than distancing pregnancy from the ADA‘s purpose, the ongoing cultural
shift toward acknowledging pregnancy‘s compatibility with labor force
participation dovetails with the attitudinal shift the ADA aims to achieve for
all forms of physical variation formerly viewed as incompatible with paid
work. Whether an individual faces the types of barriers the ADA


employees.‖); see also id. (―As late as the 1950s, pregnant women consciously avoided
appearing in public places.‖) (citing Carl N. Degler, At Odds: Women and the Family in
America from the Revolution to the Present 61 (1980)).
140
    See EEOC v. W&O, Inc., d.b.a. Rustic Inn, 213 F.3d 600, 606-607 (11th Cir. 2000)
(reporting that restaurant owner told six month pregnant waitress she was ―too fat to be
working in here‖); E.E.O.C. v. Financial Assur., Inc., 624 F. Supp. 686, 691- 92 (W.D. Mo.
1985) (reporting that employer fired executive secretary because ―[w]e can't have you
running around the office with your belly sticking out to here.‖); Leach v. Bd. of Review,
Bureau of Unemployment Comp., 184 N.E.2d 704, 705 (Ohio Ct. C.P. 1962) (reporting
that employer told pregnant worker ―that she could not continue working because her
appearance was unseemly.‖); see also Crossley (―a disability theorist might ask, if an
employer (or other actor covered by the ADA) discriminates against a woman based on her
pregnancy and related conditions, isn't that discrimination likely to be based on the
deviation of the pregnant woman's body from cultural ideals of what the body should look
like and how it should perform? And, if that is the case, how much does discrimination
based on pregnancy really differ from discrimination based on disability?‖)
    141
         See Matizze 82 Geo. L.J. 193, 229 (1993) (―The assumption that pregnant women,
and others with legally cognizable disabilities, are in danger of hurting themselves and that
their very bodies are incompatible with safe and efficient work is more than a coincidental
similarity.‖)
     142
         CITE policies (Grossman); Pregnancy Discrimination Act of 1978, Pub. L. No. 95-
555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000(e)).
143
    LaFleur v. Cleveland Bd. of Educ., 414 U.S. 632, 644 (1973).
                    PREGNANCY AND THE AMENDED ADA

confronts—―prejudice, antiquated attitudes, or the failure to remove societal
and institutional barriers‖144—has more to do with negative social responses
to the individual‘s physical condition than with whether the physical
condition has an inherently negative effect on the individual‘s body. While
many conditions the ADA covers impose inherently negative difficulties
such as physical pain, fatigue, and shortened lifespan, the ADA‘s focus is
on the socially imposed disadvantages that too frequently accompany these
biological limitations.
        In sum, the fact that the FMLA and other structural changes have
enabled many women to no longer experience a significant lack of fit with
their job when they become pregnant should not bar pregnancy from the
ADA‘s protected class. Employers continue to tell pregnant women they
are ―not fit for work‖ in many male-dominated occupations, such as police
work, construction, and manufacturing, that have not sufficiently changed
to accommodate pregnancy. Accordingly, women able to fully conform to
work expectations oriented around male norms during the rest of their work
lives predictably lose these jobs when they become pregnant, a pattern that
perpetuates workplace sex segregation and validates the assumption that the
source of the lack of fit is the workers‘ pregnancy rather than the manner in
which the workplace is structured. This pattern is most acute in low income
work, where rigid work rules restrict workers‘ ability to consume water,
vary their working positions, and curtail physically demanding repetitive
tasks. The fact that higher income workers frequently have negotiating
power to obtain light duty work and other accommodations should not bar
the ADA‘s doors to workers whose employers continue to resist
restructuring work rules to accommodate the temporary effects of
pregnancy, particularly now that the ADA now requires these employers to
accommodate short term physical limitations caused by other physical
conditions.


                               CONCLUSION

       The Pregnancy Discrimination Act and the Family Medical Leave
Act do not resolve the pregnancy-work conflict for many women whose
jobs involve exposure to hazardous chemicals or physically demanding
tasks. Accordingly, these workers need additional structural change to
address the continued effects of the historical assumption that pregnant
workers would not participate in paid employment. Although this structural
change might ideally be accomplished via amendment to the Pregnancy

   144
         42 U.S.C. ____
                 PREGNANCY AND THE AMENDED ADA                               35

Discrimination Act, such amendment appears politically unlikely in the near
term. Accordingly, this article has argued that pregnant workers currently
―lost in the gaps in the law for pregnant women‖ 145 should capitalize on the
ADAAA‘s expansion of the ADA‘s protected class.
        The EEOC‘s conclusion that pregnancy cannot qualify as an
impairment because pregnancy is not a physiological disorder
inappropriately makes impaired biological functioning the test for ADA
class membership.        Negative social responses, rather that impaired
biological functioning, are ADA‘s the primary concern. For ADA
purposes, the relevant question is not whether medical science regards a
particular physical condition as inherently abnormal but instead whether a
particular workplace policy—such as an inflexible lifting requirement or a
refusal to permit employees to carry water bottles—effectively transforms a
naturally occurring physical condition into a workplace ―disability.‖




   145
       Serednyj v. Beverly Healthcare LLC, No. 2:08-CV-4 RM, 2010 WL 1568606, at
*13 (N.D. Ind. Apr. 16, 2010).

				
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