Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities protected under the Americans with Disabilities Act (ADA). Under this reasoning, recent amendments expanding the scope of disabilities covered by the ADA could have the perverse effect of decreasing employers’ obligations to pregnant employees. This Article argues that these decisions misinterpret the PDA. The same treatment clause creates a substantive, albeit comparative, accommodation mandate. Rather than focusing on the presence or absence of discriminatory intent, courts should simply assess whether the employer has, or under the ADA would be required to, accommodated limitations like those caused by pregnancy. This approach appropriately incorporates consideration of the costs that accommodations impose on employers but insulates that inquiry from still persistent misconceptions regarding pregnant women’s capacity and commitment to work. This Article is the first to consider in depth how the 2008 amendments to the ADA interact with the PDA. In addition to providing textual analysis, the Article provides historical context that helps confirm that the PDA means what it says. Commentary on the PDA generally characterizes the statute’s same treatment language as a response to some feminists’ concerns that requiring “special” accommodations for pregnancy would increase the risk of discrimination or backlash against women generally. This Article contributes to the historical literature on the PDA by identifying a distinct — complementary but largely overlooked — benefit of the PDA’s same treatment language: it came on the heels of an extraordinary expansion of employer and government support for health conditions other than pregnancy. Thus, although the PDA does not itself require specific pregnancy accommodations, its enactment required many employers to provide far more robust support for pregnancy than they had previously. This historical context has direct relevance for contemporary doctrine, since it is closely analogous to the recent expansion of the ADA. The unduly narrow conception of comparators currently used by some courts interpreting the PDA risks relegating pregnancy once again to the basement. **** This Article was published prior to the Supreme Court\u27s decision in Young v. UPS. Young held (as I argued in this Article) that lower courts erred in holding that ADA-accommodated employees could not be used as comparators under the PDA. The facts in Young predated the effective date of the ADAAA, and thus the Court had no cause to engage directly with the significance of the changes that statute made to the ADA. The historical context I provide in this Article for consideration of how the ADA and PDA interact remains applicable, post-Young. To bring the analysis up to date, I have also published a companion article, available at 50 U.C. Davis Law Review 1423 (2017) and on SSRN (http://ssrn.com/abstract=2948666), that discusses the Court\u27s holding in Young and how lower courts have begun to apply Young