Tuesday, September 6, 2011

Pregnancy as disability discrimination: New ADA vs. Old ADA

A year ago, the 6th Circuit concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify for protection under the ADA. Late last month, the 7th Circuit—in Serednyj v. Beverly Healthcare—took up the same issue with a different result. Employers looking for help in dealing with pregnant employees should not celebrate too quickly. Because Serednyj’s termination occurred before the ADAAA took effect, its impact will be short-lived.

Serednyj involved a non-FMLA-eligible employee terminated after her doctor placed her on light duty for pregnancy-related complications. The court agreed that Serednyj’s complications constituted a “physical impairment” under the ADA. It upheld the dismissal of her ADA claim, though, because the short-term nature of her pregnancy meant that it did not “substantially limited a major life activity.”

Serednyj claims that her physical impairment substantially limited her major life activities of reproduction and lifting…. Pregnancy is, by its very nature, of limited duration, and any complications which arise from a pregnancy generally dissipate once a woman gives birth. Accordingly, an ADA plaintiff asserting a substantial limitation of a major life activity arising from a pregnancy-related physiological disorder faces a tough hurdle…. Serednyj’s pregnancy-related complications did not last throughout her pregnancy or extend beyond the time she gave birth.

This case is an illusory victory for employers. Under the ADAAA, which took effect January 1, 2009, the effects of a short-term impairment (one lasting fewer than six months) can be substantially limiting. Employers no longer can expect to be helped by the limited duration of any medical condition (including pregnancy). As the ADAAA’s regulations make clear: “the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.”

Under a current ADA analysis, I have no doubt that Beverly Healthcare should have accommodated Serednyj’s pregnancy complications by granting her light duty. Despite the employer’s victory in this case, businesses should heed it as a warning that the rules for handling all employee medical conditions—including pregnancy—have radically changed.

[Hat tip: The Employer Handbook]

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.