Thursday, August 12, 2010

More on pregnancy as a disability

The more I think about yesterday’s post discussing Spees v. James Marine, Inc.—which held that pregnancy-related impairments that are not part of a “normal” pregnancy can qualify an an ADA impairment—the more troubled I am about the court’s decision.

The claim in Spees was a “regarded as disabled” claim. Heather Spees claimed her employer transferred her away from her welding duties because it perceived her at risk because of a history of miscarriages. Yet, the ADA states that one cannot premise a “regarded as” claim on “impairments that are transitory and minor”—that is, impairments “with an actual or expected duration of 6 months or less.” Pregnancy, by its very nature, is a transitory condition. Most pregnancy-related impairments—ectopic pregnancy, preeclampsia, miscarriage, gestational diabetes, placenta previa—only occur during a portion of the pregnancy. Moreover, in most cases, childbirth cures these impairments. In other words, by their very nature, pregnancy-related impairments are transitory, and should not be covered by ADA.

There, now I feel much better.

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