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by M. McClure on Nov 13, 2009 at 12:45 PM

Prominent EEOC lawyer says pregnancy may be a protected disability under the ADAAAIt's not official yet, but pregnancy may be the newest protected disability under the amended Americans with Disability Act (ADAAA).  Although the ADAAA does not address pregnancy, the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity."  That statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees.

Christopher J. McKinney at HR Lawyer's Blog points out that the EEOC recently filed a complaint in Washington against D. R. Horton, a Fortune 500 home builder, for discriminating against an employee when it fired her after she was put on bed rest for seven months due to pregnancy related complications. McKinney is correct when he says that the fact that the EEOC brought this case under the ADAAA "speaks volumes."  

A recent Arkansas case is a good example of how a pregnancy discrimination case might be more successful under the ADAAA.  The Arkansas Supreme Court recently affirmed summary judgment for an employer in a complaint against the company for discrimination due to pregnancy complications.  In Greenlee v. J.B. Hunt, the employee experienced complications during her pregnancy that required bed rest, but she was fired because she had only worked for the company for four and a half months and was not eligible for additional leave.  The court found that employee was not fired because she was pregnant, but because additional leave was not available to her under the company policy.  

If the Greenlee case had been brought under the ADAAA (which wasn't in affect at the time of the plaintiff's termination), a court may have reasoned that the company failed to accommodate a condition that substantially limits a major life activity and allowed the plaintiff continue to trial.       

It's important to note that the proposed ADAAA regulations state that conditions that are transitory (lasting less than 6 months) will not be protected under the ADAAA.  Therefore, the ADAAA is unlikely to apply to the majority of pregnant employees.  Still, it's too soon to know how far the EEOC's theory on pregnancy as a disability will go, and the fact that the EEOC has staked out this position should give employers pause.

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