It was 11:30 a.m. on a Friday, and one of us, Chavi Eve Karkowsky, was running about an hour behind schedule seeing patients at a high-risk pregnancy clinic. I rushed in to see my 10:30 patient, a lovely woman whom we’ll call Ms. Z. She was a cheerful presence, dressed for the winter day with bright scarves and tall black boots. Ms. Z was there as a high-risk patient because she has a history of preterm labor, with a prior baby born at 26 weeks, which is extremely premature. But this time, there she was, at 35 weeks, close to the end of her pregnancy. For all intents and purposes, we’d won this round.
I went through her records, checked her weight, blood pressure, and the baby and measured her belly—all the usual. It was a nice, mellow visit, because frankly, she was the lowest-risk high-risk patient I would see all week.
We chatted about how she was feeling, and as we started to wrap up the visit and set her next appointment, she said: “Oh! I almost forgot. I need a note for work. My manager took me off of work two weeks ago; I just showed up, and he didn’t put me on the hotel cleaning schedule for the last two weeks. He says I can get disability if you just give me a letter saying I can’t work.”
“Ah,” I said. “Oh, boy,” I thought.
This is where this gets tricky. Because this patient? There was no reason she couldn’t work. Obstetrically, medically, she was doing incredibly well. She may have needed a few minor changes to her job: a break every three to four hours, the ability to hydrate on the go, lifting limitations that are well within what her job requires—accommodations that wouldn’t significantly change what she does at work or how she does it. Mostly accommodations that every human—pregnant or not—could benefit from.
And this was what she didn’t seem to know: As a pregnant woman who was willing and able to continue working, she had rights. And they were being trampled on.
* * *
As a lawyer at the Center for WorkLife Law, the other of us, Liz Morris, hears about cases like Ms. Z’s all too often. Forcing a woman out of the workplace because she is pregnant is patently unlawful pregnancy discrimination under federal civil rights law. Ms. Z’s manager took her off the schedule because she is pregnant, without any request from Ms. Z to take leave and without any instruction from a doctor that she stop working.
People are sometimes surprised to learn that taking an adverse employment action against a woman because she is pregnant is illegal. But it’s true: Employers may not fire, refuse to hire, demote, or reduce the hours or pay of pregnant women simply because they are pregnant—even if the employer believes it has the pregnant woman’s best interest at heart. Whether it is safe or desirable to continue working while pregnant is a question for a woman and her doctor—not her boss.
What’s more, pregnant women with impairments caused by pregnancy who need job modifications to be able to continue working, called reasonable accommodations, are entitled to them under the Americans With Disabilities Act. For example, a woman with a severe backache stemming from pregnancy may be entitled to a chair to sit on while she checks out customers. A woman with a bladder infection should be allowed to carry a water bottle on the factory floor to stay hydrated. Employers may be required to provide flexible work schedules to pregnant women so they can attend prenatal appointments with health care providers like Karkowsky.
Accommodations like these allow pregnant women to continue working and earning money at a time when they likely need the money most—when their families are expected to grow. Employers are required to provide such accommodations to pregnant women with impairments unless doing so would cause an “undue hardship,” or a significant difficulty or expense. But most accommodations required by pregnant women are inexpensive or cost-free, temporary, and easy to provide.
The Americans With Disabilities Act provides significant protection to pregnant women from being pushed out of the workplace, but it isn’t perfect. A “disability” under the law is broadly defined as an impairment that substantially limits one or more major life activities (including things like walking, standing, and lifting) or the operation of a major bodily function (including functions of the reproductive, endocrine, musculoskeletal, and other systems). But pregnancy alone is not a disability. A woman who has no impairment associated with her pregnancy is not covered by the Americans With Disabilities Act, and she should be aware that her employer need not provide reasonable accommodations for her under that law. For example, a police officer who wants to temporarily switch to a desk job to avoid being kicked in the stomach is not covered by the Americans With Disabilities Act because she has no impairment requiring her to be taken off the beat—rather, she simply (and understandably) wants to avoid potential future injury.
The Supreme Court will decide in the coming months in Young v. UPS whether pregnant women without impairments are entitled to accommodations under a different statute: the Pregnancy Discrimination Act. (No matter what the Supreme Court decides in Young, pregnant women with impairments will still have a right to accommodation under the Americans With Disabilities Act.) To fill in the gaps in federal law, several states and cities have passed laws that require employers within their jurisdictions to accommodate pregnant women, including laws that provide light duty for nondisabled pregnant women who request it.
A single, straightforward federal statute is still needed to guarantee pregnant women’s rights. Advocates are seeking passage of the Pregnant Workers Fairness Act to send a clear message to employers that pregnant women must be accommodated. For now, we’ll have to rely on the laws already on the books and hope that the Supreme Court does not turn its back on pregnant women. No woman should be forced to choose between her job and a healthy pregnancy.
When Karkowsky told me what happened to Ms. Z, I was shocked but not surprised. I was, however, pleasantly surprised by her admirable response to Ms. Z’s boss’ suggestion that she get a note certifying that she was no longer able to work.
* * *
Back in the high-risk pregnancy office, it’s now 11:45 a.m. Sitting in the chair opposite Ms. Z, I took a deep breath. The easy thing for me to do would be to write the damn letter claiming that Ms. Z cannot work, as urged by her boss. But it’s not true, and perhaps more importantly, it’s not the right thing to do. So instead I started with this: “Do you want to work?”
“Yeah. Yeah, I do,” Ms. Z said. “If it’s safe for the baby, I really need to. I need to pay for my older kid’s day care. I haven’t earned any money for two weeks. We’re having some trouble.” Even with the disability paperwork her boss sent her to get, at best her income would only be a fraction of her usual salary.
“Well,” I said, “I think you can work safely. I think your manager is wrong, and frankly, what he’s done is illegal.” We talked for a while more. She demonstrated for me what activities she does during the day, what her work schedule is like, and the slight modifications that could be made to her job so she could continue working.
In the end, using language I learned from lawyers like Morris, I wrote a letter to Ms. Z’s boss, but not the one he asked for:
To Whom It May Concern;
Ms. Z was seen by me in the office today. Due to her medical condition, she will need the following accommodations at work:
-No lifting greater than 26 pounds at a time
-The ability to drink water throughout her work day
-A 20 minute break at least every 3-4 hours
Based on her job description, Ms. Z should be able to perform her essential job functions with these accommodations. These accommodations are medically recommended.
I printed it. I signed it. She took it in her hands. “Good luck,” I said. “You’re right, and he’s wrong. Let me know how it goes.” She took a deep breath and headed out to do what mothers have been doing forever: She was going to make it work.