Pregnancy as Disability?
Maybe Some New
Rules are Necessary
By Deborah Kendrick
When I was pregnant with my first child, my husband and I
had an experience with a couple of strangers that we would recall (for
entertainment) for years to come.
The couple followed us through the store and into the
mall. We walked faster and didn't look back. They followed us through the mall,
to the exit, and out into the parking lot. Incredulous, we walked faster and
still didn't turn around, but by now, they were definitely on our heels, and
the phrases were loud and clear: "Jesus saves." "Jesus can heal you."
I was tired, pregnant and irritated. My husband was
amused. We reached our car, and they were right there with us, trying to begin
a conversation. One or both of us said we had our own church, but they just
kept on talking. Realizing that my husband was finding the exchange and
subsequent banter entertaining, I used my long white cane to find my way around
the car, opened the door and got into the driver's seat. To my utter
astonishment, the woman got in after me -- for a womanto- woman chat, I
suppose. She now had a literally captive audience!
She began her evangelical spiel. I politely countered
with, "We have our own church, thanks." She pressed a bit more, and I said
nothing. Then, getting to the real point, she asked in a low, dramatic tone,
"How long have you had your affliction?"
Of course I knew she meant my blindness. But I was not
going to engage. Blindness was not an affliction, after all, just a physical
trait, in my opinion, and so, after a pause, I looked down, patted my gigantic
bulge and said innocently: "Oh! You mean this? Well, about six months now."
My husband finally tired of his banter with the male
evangelist and broke free. Somehow, we got rid of our passenger. I slid into my
usual passenger seat and we drove away, laughing.
At the time, referring to my pregnancy as if it were a
disability was hilarious to us, but decades later, the topic is a serious one
among experts in employment discrimination issues
Jeanette Cox, an associate professor of law at the
University of Dayton, has presented a paper on the subject of adding protection
for pregnant women in the workplace under the Americans with Disabilities Act
at a variety of law conferences. (The paper was scheduled for publication in
the March issue of the Boston College Law Review.) While the ADA Amendments Act
of 2008 included individuals with certain minor or temporary disabilities, Cox
said, employers have not yet been convinced that the physical difficulties
experienced by pregnant women fall into these categories.
The American Pregnancy Association estimates that there
are about 6 million pregnancies annually in the United States. Certainly, most
of these are considered normal, healthy pregnancies. Indeed, some women say
they feel better when pregnant than at any other time. There's that pregnancy
"glow" of clear skin, healthy hair, perfect fingernails. As the baby grows,
however, many women also experience shortness of breath and extreme
Using my own first pregnancy as an example, I was that
healthy, glowing mom to- be for the first five or six months. Then, no matter
what I ate or didn't eat, my weight kept soaring (ultimately to 142 pounds),
and I developed toxemia. It was my good fortune that, as my physical health
became increasingly compromised, my employer worked with me to change my
schedule. I moved from full days to half days, from a schedule that included
long stretches of standing and walking to one that was entirely sedentary. For
the final six weeks, I was in a constant struggle with my doctor to stay out of
the hospital and managed to win that ongoing debate only by spending all but
four hours of teaching each day in bed.
Thirty years ago, there were no laws protecting my job. I
simply had the good fortune that my employer was a woman who had given birth to
two children herself and whose pregnancies had been somewhat difficult. Then
and now, the personal perceptions and attitudes of individual employers have
some bearing on the accommodations extended to pregnant women.
A young graphics designer recently hid her pregnancy from
her employer, guided by an intuition that it would not be welcome news. When,
at 22 weeks, she finally revealed the news that was so exciting to her, she was
almost immediately laid off.
Cox cited examples of women for whom no accommodations
were made -- such as desk duty for a pregnant police officer similar to the
accommodation offered male colleagues with minor injuries. Some women, she
said, lose their jobs due to the temporary inability to continue repeated
bending or lifting or the need for frequent hydration
For the stability of the law and the protection of
Americans with undeniable disabilities, this is one very slippery and
complicated slope. Most pregnant women experience physically compromising
issues that could only be characterized as minor inconveniences. Some
who experience, for example, toxemia or gestational diabetes, or rare
conditions that may jeopardize the life of the mother or unborn child --
definitely enter a period of temporary disability while pregnant.
So where should the line be drawn? To include all pregnant
women under the ADA could, arguably, trivialize serious civil rights clearly,
some pregnant women do experience disabling circumstances and significant
discrimination. A case-by-case disability classification supported by a medical
professional is one solution. A separate and distinct law protecting pregnant
women in the workplace would be another. To include pregnant women as an entire
class under the ADA minimizes the effect of the discrimination directed toward
people with "real" disabilities.
Three decades ago, I joked about my pregnancy to sidetrack
a religious fanatic who wanted to cure my blindness. And maybe that
uncomfortable situation could serve as one more measure of whether pregnancy is
a disability. People want to heal you, cure you, fix you, or change you if they
see that you are unable to see or walk or talk or open a door. Those conditions
are still often enough met with pity. I called my pregnant stomach an
"affliction" that long-ago day because the notion was so absurd, because
pregnant women, unlike people with disabilities, are generally greeted with
is a newspaper columnist, editor and poet.