Wednesday, August 11, 2010

Pregnant = disabled, at least according to the 6th Circuit

The Americans with Disabilities Act expressly excludes pregnancy as a disability. Or at least that’s what it says, and what I’ve always believed to be true. Yesterday, the 6th Circuit decided Spees v. James Marine, Inc. [pdf], which will turn the notion of pregnancy as an ADA-protected disability on its head.

Heather Spees was a welder-trainee with JMI. Shortly after her hire, she learned she was pregnant. Her prior pregnancy ended in a miscarriage. Spees talked to her brother who was also a JMI foreman, her own foreman, and her obstetrician who originally cleared her for work without restrictions. Spees’s foreman, however, told her to revisit her doctor and get a note for light duty. He thereafter assigned her to the tool room away from her welding duties, telling her, “For right now, we don’t know what to do with you.” Apparently, Spees’s brother and foreman concluded that the risks associated with welding were too dangerous for the pregnant Spees. When another doctor later ordered Spees to full bed-rest, JMI terminated her employment for excessive absences. According to Spees, her brother told her that she “was being fired for being pregnant.”

The 6th Circuit resurrected Spees’s “regarded as” disabled claim. Although it recognized that pregancy, in and of itself, does not qualify as a disability, the court concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify an an “impairment” under the ADA:
Our first step in evaluating Spees’s ADA claim is to determine whether her prior miscarriage, or a potentially higher risk of having a future miscarriage, could constitute an impairment. Whereas no court has held that pregnancy by itself is an impairment under the ADA, many district courts have held that pregnancy-related conditions can qualify as such…. 
Pregnancy-related conditions have typically been found to be impairments where they are not part of a “normal” pregnancy…. Susceptibility to a miscarriage, moreover, has been deemed by some courts to be such a condition…. 
Although other courts have held that pregnancy complications related to miscarriages are not disabilities, the analysis in those cases did not hinge on the question of whether there was an impairment, but rather on whether the condition was sufficiently severe to substantially limit a major life activity…. There thus appears to be a general consensus that an increased risk of having a miscarriage at a minimum constitutes an impairment falling outside the range of a normal pregnancy.
The 6th Circuit appears to be breaking new ground again in the expansion of employees’ rights under federal discrimination laws. This case ups the ante for employers dealing with pregnant employees. Now, more than ever, employers should adopt, as best as possible, a “see no evil, hear no evil” approach in dealing with those who are pregnant to avoid any knowledge of pregnancy-related complications or conditions.