Devi Rao, CLS ’10, is a Skadden Fellow for Educational and Employment Opportunities at the National Women’s Law Center, where she focuses on using Title IX to promote safe school environments, including preventing gender-based bullying. Devi is a graduate of the University of California, Berkeley and Columbia Law School, where she served as Editor-in-Chief of the Columbia Law Review. She discusses pregnancy discrimination below, cross posted from the National Law Women’s Center blog:

This week, the EEOC held a public meeting on unlawful discrimination against pregnant workers and workers with caregiving responsibilities at which experts, including the National Women’s Law Center’s own Vice President and General Counsel Emily Martin, presented compelling testimony setting out the widespread and often blatant ways in which employers continue to unlawfully discriminate in the workplace. Members of the Commission expressed dismay, if not complete surprise, that nearly 35 years after the Pregnancy Discrimination Act (PDA) was passed in 1978, discrimination on the basis of pregnancy persists,in the words of EEOC Chair Jacqueline A. Berrien, “unnecessarily depriving women of the means to support their families.”

The PDA amended Title VII of the Civil Rights Act of 1964 to clarify that—duh!—employment discrimination on the basis of pregnancy is a type of sex discrimination. (Sounds obvious, right? Well, it wasn’t to the Supreme Court.) The PDA requires employers to treat women “affected by pregnancy, childbirth, or related medical conditions” the same “as other persons not so affected but similar in their ability or inability to work.” This phrase is important—the PDA defines the sole relevant point of comparison between pregnant and non-pregnant workers as the person’s ability to do the job. So what does this mean?

First, consider that pregnancy discrimination claims appear to come up—at least based on the caselaw—most frequently in jobs that require a lot of physical activity like running, lifting, moving, standing, or repetitive motion. Many of the pregnancy discrimination cases arise in jobs traditionally held by men, such as law enforcement and trucking (so, ironically, pregnancy discrimination compounds the existing barriers that women face when attempting to break into many high-paying male-dominated positions), while others appear in female-dominated, often low-wage work like nursing assistance, cleaning, and retail.

Women in physically demanding jobs may seek light duty assignments from their employers at some point during their pregnancy. (For example, in a case from the Sixth Circuit, a pregnant truck driver sought light duty after her doctor told her that she shouldn’t lift more than 20 pounds; her usual duties required her to lift up to 75 pounds.) But many employers offer light or modified duty assignments only to those employees injured on the job, and therefore refuse to modify job duties to accommodate pregnant workers. Such policies unnecessarily force women out of physically demanding workplaces even when they could continue to do their job with slight modifications. But, remember, the PDA defines the sole relevant criterion for comparison as “ability or inability to work,” so a workplace policy that denies accommodations to pregnant women when accommodations are provided to those “similar in their ability or inability to work”—regardless of the root cause of that inability—is a blatant violation of the civil rights law.

Second, employers’ mandatory accommodation of a wide-range of disabilities under the Americans with Disabilities Act (ADA) must equally be afforded to pregnant women who are—together now!—“similar in their ability or inability to work.” In other words, an employer violates the PDA when it denies pregnant employees privileges that it gives to non-pregnant temporarily disabled employees with comparable physical restrictions. And since the 2008 ADA Amendments Act, employers are legally obligated to accommodate a wide range of permanent and temporary disabilities that are comparable to typical pregnancy symptoms and restrictions—for example, temporary back injuries, inability to lift more than 20 pounds, or conditions that cause shortness of breath or fatigue. It follows that since employers are legally required to accommodate many workers who are—you guessed it—“similar in their ability or inability to work” to pregnant workers, the PDA requires the employer to extend the same set of accommodations to pregnant women.

Pregnancy discrimination is a serious problem since women, who make up approximately half the workforce, are continuing to work while they are pregnant, working through later stages of pregnancy, and returning to the workforce after pregnancy in unprecedented numbers. The EEOC should meet the critical need for further guidance to educate employers on the specifics of their legal responsibility to not discriminate against pregnant workers. A legal responsibility that focuses on the similarities between pregnant women and other employees “in their ability or inability to work.” A responsibility, let’s not forget, that’s been in place since 1978.


  1. New blog post from Devi Rao, CLS ’10, Skadden Fellow at the National Women’s Law Center, on pregnancy discrimination: http://t.co/yAi4OtPv

  2. New blog post from Devi Rao, CLS ’10, Skadden Fellow at the National Women’s Law Center, on pregnancy discrimination: http://t.co/yAi4OtPv

  3. Gender & Sexuality Law Blog » How Not to Discriminate Against Pregnant Employees: http://t.co/Z3QQqBo1

  4. Gender & Sexuality Law Blog » How Not to Discriminate Against Pregnant Employees: http://t.co/Z3QQqBo1

  5. Gender & Sexuality Law Blog » How Not to Discriminate Against Pregnant Employees: http://t.co/Z3QQqBo1

  6. US: “Similar in Their Ability or Inability to Work” or: How Not to Discriminate Against Pregnant Employees http://t.co/PhV5jfz0

  7. Gender & Sexuality Law Blog » How Not to Discriminate Against Pregnant Employees: http://t.co/Z3QQqBo1

Add a comment

Comments are subject to moderation and do not necessarily reflect the opinions of
Columbia Law School or Columbia University.



"Homeland" Security Abortion Rights Activism Adoption adultery Advocacy Affordable Care Act Alien Tort Claims Act Amicus Brief Asylum Bankruptcy BDS Bullying Census Politics Children Citizenship Civil Unions Clinic Columbia Law School Compulsory Marriage Condoms Contraception Contraception Mandate Cordoba House Criminal Law Cures for Homosexuality Defense of Marriage Act Disability Rights Discrimination Divorce Domestic Partnership Domestic Violence Domestic Workers Don't Ask Don't Tell Earth Day Economic Justice Education Egypt Elections Employment Discrimination ENDA Estate Planning Events Family Law Fellowships femininity Feminism Free Speech Gender and Technology Gender Identity Discrimination Gendering the Economy Gender Justice GSL Online Haiti Hate Crimes Health Care Hilary Clinton Hillary Clinton Hiring HIV HIV Discrimination Hobby Lobby Homelessness Homophobia Housing Human Rights Identity Politics Illegitimacy (sic) Immigration Reform In-ing Incest India International Law Intersectional Feminism Islamophobia Israel Jobs Justice Sotomayor King & Spalding Labor Trafficking Land Reform Law School Legal Profession Legal Scholarship Lesbian & Gay Parenting LGBT Parenting Marital Status Discrimination Marriage Marriage Equality Masculinity Medicaid Michelle Obama Migration Military National Security Obama Administration Obama Appointments Obergefell Outing OWS Palestine Parenting Pinkwashing Policing Politics of the Veil Polyamory Popular Culture Pornograpy Pregnancy Presidential Politics Prisons Privacy Products Liability Profanity Prop 8 Prosecutorial Discretion Publications Public Rights/Private Conscience Public Rights/Private Conscience Project Queer Theory Queer vs. Gay Rights Race and Racism Racial Stereotyping Rape Religion Religious Accommodation Religious Exemption Religious Exemptions Religious Freedom Restoration Act Religious Fundamentalism Reproductive Rights Reproductive Technology RFRA Romania Rwanda Sartorial Commentary Schools Sex Discrimination Sex Education Sex Stereotyping Sexting Sex Trafficking Sexual Assault Sexual Duplicity Sexual Harassment Sexual Health Sexuality and Gender Law Clinic Sexual Orientation Discrimination Sex Work Silencing of voices SMUG Sodomy Law Reform Solidarity Sports Supreme Court Surrogacy Technology Title IX Trafficking Transgender Uganda Uncategorized Violence Women and Poverty Women of Color Work Zimbabwe

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.