SJ Quinney College of Law, University of Utah SJ Quinney College of Law, University of Utah
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Miscarriage of Justice: Early Pregnancy Loss and the Limits of Miscarriage of Justice: Early Pregnancy Loss and the Limits of
U.S. Employment Law U.S. Employment Law
Laura T. Kessler
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MISCARRIAGE OF JUSTICE:
E
ARLY PREGNANCY LOSS AND THE LIMITS OF U.S.
E
MPLOYMENT LAW
Laura T. Kessler
*
This Article explores judicial responses to miscarriage under federal
employment law in the United States. Miscarriage is an incredibly common
experience. Of confirmed pregnancies, about fifteen to twenty-five percent will
end in miscarriage. Yet this experience slips through the cracks of every major
federal employment law in the United States.
The Pregnancy Discrimination Act of 1978, for example, defines sex
discrimination to include discrimination on the basis of pregnancy,
childbirth, or related medical conditions. The Family and Medical Leave Act
of 1993 requires covered employers to provide employees with job-protected,
unpaid leave for personal or family illness. The Americans with Disabilities
Act of 1990 mandates both nondiscrimination and reasonable
accommodations for employees with disabilities. The Occupational Safety
and Health Act of 1970 is supposed to ensure that American workplaces are
free of recognized hazards that may cause serious physical harm to workers.
However, as this Article demonstrates, none of these laws clearly addresses
the experience of miscarriage. Moreover, courts and agencies often refuse to
interpret these statutes in obvious and reasonable ways to provide meaningful
equality to workers when they suffer the common experience of miscarriage.
Many scholars have examined the limitations of employment law with
regard to pregnancy. This Article is the first to comprehensively examine this
problem as it specifically relates to miscarriage. In addition to bringing
attention to this important issue, which silently affects so many workers, this
Article provides an opportunity to challenge the artificial conceptual
separation of employment and health law, as well as to consider the problem
of pregnancy discrimination through the broader lens of reproductive justice.
TABLE OF CONTENTS
INTRODUCTION ................................................................................................. 2
A. Prologue ............................................................................................. 2
B. Miscarriage of Justice ....................................................................... 4
I. DEFINING MISCARRIAGE AND ITS HEALTH, EMOTIONAL, AND SOCIAL
IMPACTS ....................................................................................................... 6
II. MAJOR FEDERAL EMPLOYMENT LAWS FAIL TO PROTECT EMPLOYEES WHO
SUFFER ADVERSE EMPLOYMENT ACTIONS DUE TO MISCARRIAGE .............. 9
*
Professor of Law, University of Utah, S.J. Quinney College of Law; [email protected].
Many thanks to Rachel Arnow-Richman, Stephanie Bornstein, Deborah Brake, Teneille Brown,
Michael Green, Joanna Grossman, Jill Hasday, Camille Hebert, Yvette Lindgren, Anibal Rosario
Lebrón, Ann McGinley, Dana Phillips, Radhika Rao, and Marley Weiss for comments on early drafts
of this Article, and to research assistants Briana Allen, Dylan Raymond, Elena Todorova, and Cate
Vaden. All errors are my own.
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2
A. The Pregnancy Discrimination Act ................................................... 9
1. Miscarriage Stereotyping Cases under the PDA ...................... 10
2. Miscarriage Equal Accommodation Cases Under the PDA ..... 11
a. The PDA and Bedrest .......................................................... 21
b. The PDA and Depression Following Miscarriage ............... 25
c. The PDA and Fertility Treatment ....................................... 27
B. The Family and Medical Leave Act ................................................ 33
1. The Serious Health Condition Requirement ............................ 33
2. Partner FMLA Miscarriage Claims .......................................... 35
3. The FMLA and Post-Miscarriage Depression .......................... 38
C. The Americans with Disabilities Act .............................................. 40
1. Normal Pregnancy ..................................................................... 42
2. Pregnancy-Related Complications, Including Miscarriage ...... 43
a. Pre-ADAAA Cases ................................................................ 43
b. Post-ADAAA Cases .............................................................. 44
3. The ADA and Post-Miscarriage Depression ............................. 47
4. Bedrest ....................................................................................... 50
D. The Occupational Safety and Health Protection Act ..................... 51
III. SPECIAL LEGAL OBSTACLES RELATED TO MISCARRIAGE AND
EMPLOYMENT ............................................................................................ 55
A. Retaliation ....................................................................................... 58
B. Notice without Privacy .................................................................... 61
1. Notice Requirements ................................................................. 62
a. Notice and Title VII ............................................................. 62
b. Notice and the ADA ............................................................. 63
c. Notice and the FMLA ........................................................... 63
2. Privacy “Protections” ................................................................. 64
a. Privacy and Title VII ........................................................... 64
b. Privacy and the FMLA ........................................................ 65
c. Privacy and the ADA ............................................................ 66
IV. A WAY FORWARD: ..................................................................................... 69
THE PREGNANT WORKERS FAIRNESS ACT IS NOT ENOUGH ........................... 69
A. The Pregnant Workers Fairness Act ............................................... 69
B. Enhanced Antiretaliation and Privacy Protections ........................ 71
C. Paid Personal and Sick Leave ........................................................ 75
D. Occupational Safety and Health Protections ................................. 78
CONCLUSION ................................................................................................... 80
I
NTRODUCTION
A. Prologue
I have had five miscarriages. They tend to blur together in my head.
The one enduring memory, though, is of blood. With one miscarriage, I
remember running to the bathroom at work with blood trickling down my
legs and having to leave the building quickly to get to the hospital on
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3
campus. With another, I remember a river of blood moving and changing
shape and expanding across the tiny octagonal tiles of my bathroom floor, as
I, dizzy and alone, held on to the shower riser to stay steady, fearing I would
pass out or die before I could get help.
1
I remember the waiting. Waiting to know if a pregnancy was
succeeding or failing after a “threatened miscarriage.”
2
Waiting for the
expulsion after the pregnancy had definitively failed. Sometimes a
miscarriage comes suddenly and unexpectedly. But most pregnancies do not
unravel that way. More commonly, miscarriage is a process, a slow motion
train wreck. In the first trimester of a normal pregnancy, the pregnancy
hormone hCG
3
rapidly increases from 0 to up to 288,000, like the tachometer
of a race car when the driver floors it.
4
When a pregnancy fails, this process
reverses, but it takes time for the body to get the message, maybe days—or
weeks. Indeed, with the most common form of failed pregnancy, a fertilized
egg implants into the uterus but does not develop into an embryo at all, yet
the gestational sac and placenta continue to grow and release pregnancy
hormones.
5
This all sounds very clinical, but what does it mean for the
person who is miscarrying? It is a surreal experience that is hard to describe,
this being pregnant but not pregnant. Tired and nauseous but to no good.
Sad and worried. Waiting. And the outcome may not be clear until it is over.
Not pregnant or maybe pregnant? Waiting. I have to go to work, I have to
teach a class, no one knows this is happening inside me.
I remember the kind professionals who thought they were helping
but said and did things that increased my suffering. With one miscarriage,
my doctor had privileges only at a Catholic-owned hospital. “You have a
failed pregnancy. There is no embryo. But unfortunately, I can’t schedule
you for a D&C
6
until your hCG levels drop further, perhaps three to four
1
I acknowledge that this description is graphic. However, I wish to make clear just how jarring
the experience is. I cannot make it sound and look pretty.
2
A threatened miscarriage is defined as vaginal bleeding in the presence of a viable pregnancy.
See Christine I. Ekechi & Catriona M. Stalder, Spontaneous Miscarriage, in D
EWHURSTS TEXTBOOK
OF
OBSTETRICS AND GYNAECOLOGY 559, 561 t.40.1(Christoph Lees & Tom Bourne eds., 9th ed. 2018).
3
Human chorionic gonadotropin is made by cells formed in the placenta that nourishes the egg
after it attaches to the uterine wall. This is the hormone that home pregnancy tests can detect in
urine about twelve to fourteen days after conception. See Betty Mishkin, Human Chorionic
Gonadotropin (hCG) Pregnancy Test, in 2 T
HE GALE ENCYCLOPEDIA OF SURGERY AND MEDICAL TESTS
882, 882 (Deirdre S. Hiam ed., 4th ed. 2020).
4
Specifically, hCG levels typically double every two days, rising from 0 to up to 288,000 milli-
international units per milliliter (miUL/L) in the first trimester. What is HCG?, A
M. PREGNANCY
ASSN., https://americanpregnancy.org/getting-pregnant/hcg-levels/ (last visited Feb. 4, 2022); see
also H
UMAN CHORIONIC GONADOTROPIN (HCG) (Lawrence A. Cole & Stephen A. Butler eds., 2nd ed.
2015).
5
This is called an anembryonic pregnancy or a “blighted ovum” in medical terminology.
Candace Goldstein & Sandra L. Hagen-Ansert, First-Trimester Complications, in T
EXTBOOK OF
DIAGNOSTIC SONOGRAPHY 1194, 1198 (2018); see also Eric R.M. Jauniaux & Joe Leigh Simpson,
Pregnancy Loss, in M
ARK LANDON ET AL, GABBES OBSTETRICS: NORMAL AND PROBLEM PREGNANCIES
615, 616 (2020) (“[A]almost all losses are retained in utero for an interval before clinical recognition.
. . .”).
6
A “D&C” is short for “dilation and curettage,” a surgical procedure to evacuate the uterus after
a failed pregnancy. See Ekechi & Stalder, supra note 2, at 570.
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4
weeks. Hospital policy.”
7
With my last miscarriage, #5, as I lay on the table
with my feet in stirrups, having my uterus suctioned, cramping: “You really
need to stop trying to get pregnant. You are burdening the health system.”
And through all of this, which transpired over about three years, I
remember the secrecy, which made these experiences all the more
excruciating. I didn’t tell anyone. Not my friends, not my parents, certainly
not my employer.
8
B. Miscarriage of Justice
This Article explores judicial responses to miscarriage under federal
employment law. The major federal employment laws in the United States
would seem to protect employees who suffer adverse employment actions as
a result of the experience of miscarriage. The Pregnancy Discrimination Act
of 1978 (PDA),
9
for example, defines sex discrimination to include
discrimination on the basis of pregnancy, childbirth, or related medical
conditions. The Family and Medical Leave Act of 1993 (FMLA)
10
requires
covered employers to provide employees with job-protected, unpaid leave for
personal or family illness. The Americans with Disabilities Act of 1990
7
See Lori R. Freedman, Uta Landy & Jody Steinauer, When There's a Heartbeat: Miscarriage
Management in Catholic-Owned Hospitals, 98 A
M. J. PUB. HEALTH 1774, 1778 (2008) (“Patients
entering a Catholic-owned hospital may be aware that abortion services are not available there, but
few prenatal patients conceive of themselves as potential abortion patients and therefore they are
not aware of the risks involved in being treated there; these include delays in care and in being
transported to another hospital during miscarriage, which may adversely affect the patient’s
physical and psychological well-being.”).
8
This is just my story. I recognize that it is partial. No two miscarriages are the same. Of
particular relevance to my experience, these were desired pregnancies. Many are not. See
G
UTTMACHER INSTITUTE, UNINTENDED PREGNANCY IN THE UNITED STATES (2019),
https://www.guttmacher.org/sites/default/files/factsheet/fb-unintended-pregnancy-us.pdf
(estimating that nearly half of pregnancies in the United States are unintended, with 27% “wanted
later” and 18% “unwanted”; the figures are significantly higher for low-income women, young
women, women who are cohabiting, black women, and women without a high school degree). For
those with unintended pregnancies, a miscarriage is probably a huge relief. Still, I choose to share
my story for a few reasons, which I hope are persuasive. First, medical and social science research
suggest that many elements of my experience are representative. See discussion Part II.A., infra.
Second, the stigma surrounding miscarriage, combined with rampant workplace retaliation against
individuals who use workplace leave or benefits for pregnancy, has stifled women’s willingness to
talk about miscarriage. This silence, in turn, distorts policy discussions and law. I share my story in
an effort to change the culture of secrecy surrounding miscarriage, which I believe is a collective
response to the harms of disclosure. Cf. C
AROL SANGER, ABOUT ABORTION: TERMINATING PREGNANCY
IN
TWENTY-FIRST-CENTURY AMERICA (2017) (seeking to “pry open” the silence surrounding abortion
so that “women’s decisions about whether or not to become mothers will be treated more like those
of other adults making significant personal choices.”). Finally, adopting one of the methodologies of
critical race and feminist theory, I am sharing my story in an effort to “denaturalize legal and social
arrangements that conventional forms of scholarship [do] not question.” See Amna A. Akbar, Sameer
M. Ashar & Jocelyn Simonson, Movement Law, 72 S
TAN. L. REV. 821, 876 (2021). Examples of
scholarship in this vein include Kathryn Abrams, Hearing the Call of Stories, 79 C
ALIF. L. REV. 971
(1991), Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 M
ICH.
L. REV. 2411 (1989), Susan Estrich, Rape, 95 YALE L.J. 1087 (1986), Verónica C. Gonzales-Zamora,
The COVID Ceiling, 57 H
ARV. C.R.-C.L. L. REV. (forthcoming in 2022), and PATRICIA J. WILLIAMS,
THE ALCHEMY OF RACE AND RIGHTS (1991).
9
29 U.S.C. §§ 2000e(k), 2000e-2).
10
29 U.S.C. §§ 2601-54 (2012).
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5
(ADA), as amended by the ADA Amendments Act of 2008,
11
mandates both
nondiscrimination and reasonable accommodations for employees with
disabilities. The Occupational Safety and Health Act of 1970 (OSH Act) is
supposed to ensure that American workplaces are free of recognized hazards
that may cause serious physical harm.
12
However, none of these laws clearly
addresses the experience of miscarriage as it interfaces with the workplace.
13
Moreover, courts and agencies often refuse to interpret these statutes in
obvious and reasonable ways to provide meaningful equality to workers
when they suffer the common experience of miscarriage.
14
Many scholars have examined the limitations of employment law
with regard to pregnancy.
15
Others have drawn attention to the need for
menstrual justice.
16
This Article is the first to comprehensively examine
these problems as they specifically relate to miscarriage. In addition to
bringing attention to this important issue, which silently affects so many
workers, this Article provides an opportunity to challenge the artificial
conceptual separation of employment and health law, as well as to consider
the problem of pregnancy discrimination through the broader lens of
reproductive justice.
Part I of this Article provides a summary of current medical,
psychological, and sociological understandings of miscarriage, including its
definition, prevalence, risk factors, and broader health and societal impacts.
As this Part highlights, a miscarriage does not typically occur in a moment
or a day or a week; it is a physical and emotional event that often lasts
several weeks or months, at best, and has long term impacts on women and
people who miscarry. The impact of miscarriage also extends well beyond
the individual who physically miscarries to partners and other family
members, intended parents who utilize assisted reproductive technologies,
and surrogates. Yet despite the substantial workplace, health, and societal
effects, miscarriage, like other reproductive health matters such as
menstruation, pregnancy, and abortion, is shrouded in secrecy. In the words
of Meghan Markle, the Duchess of Sussex, who bravely went public about
her miscarriage in the middle of the pandemic, “[D]espite the staggering
11
42 U.S.C. § 12101-12213.
12
29 U.S.C. § 654(a)(1).
13
See infra Part II.
14
Id.
15
See, e.g., Stephanie Bornstein, The Politics of Pregnancy Accommodation, 14 HARV. L. & POLY
REV. 293 (2020); David Fontana & Naomi Schoenbaum, Unsexing Pregnancy, 119 COLUM. L. REV.
309 (2019); Joanna L. Grossman, Pregnancy, Work, and The Promise of Equal Citizenship, 98 G
EO.
L.J. 567 (2010); Laura T. Kessler, The Attachment Gap: Employment Discrimination Law, Women's
Cultural Caregiving, and the Limits of Economic and Liberal Theory, 34 U.
MICH. J.L. REFORM 371
(2001); Saru Matambanadzo, Reconstructing Pregnancy, 69 SMU L. R
EV. 187 (2016); Deborah A.
Widiss, The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act
After Young v. UPS, 50 U.C.
DAVIS L. REV. 1423 (2017).
16
See, e.g., BRIDGET J. CRAWFORD & EMILY GOLD WALDMAN, MENSTRUATION MATTERS:
CHALLENGING THE LAWS SILENCE ON PERIODS (2022); Margaret E. Johnson, Asking the
Menstruation Question to Achieve Menstrual Justice, 41 C
OLUM. J. GENDER & L. 158 (2021); Bridget
J. Crawford , Margaret E. Johnson , Marcy L. Karin, Laura Strausfeld & Emily Gold Waldman, The
Ground on Which We All Stand: A Conversation about Menstrual Equity Law and Activism, 6 M
ICH.
J. GENDER & L. 341 (2019).
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6
commonality of this pain, the conversation remains taboo, riddled with
(unwarranted) shame, and perpetuating a cycle of solitary mourning.”
17
This
silence has massively distorted how miscarriage is regulated in the
workplace.
Part II examines each of the major federal employment statutes that
could plausibly protect workers from employment discrimination or unsafe
work conditions related to miscarriage, including the PDA, FMLA, ADA, and
OSHA. As this Part demonstrates, when workers who miscarry (or who have
health conditions increasing their risk of miscarriage) experience pregnancy
or disability discrimination, are denied FMLA leave, face workplace hazards
increasing the risk of miscarriage, or suffer retaliation for exercising their
statutory rights, federal law usually does not provide a remedy, particularly
given the narrow interpretation that federal agencies and courts have given
to these statutes.
Part III examines some of the unique social and psychological
circumstances surrounding miscarriage, particularly the culture of secrecy
and privacy, which renders federal law particularly ineffective in this realm.
In particular, statutory provisions and judicial interpretations that require
employees to share private health information with their employers as a
precondition to receiving the protection of federal employment
discrimination law, paired with insufficient privacy and retaliation
protections, further frustrate employees’ ability to benefit from what little
protection exists under federal employment discrimination law.
Finally, Part IV turns to solutions, inviting introspection and
regulatory shifts to include miscarriage in mainstream employment law.
Among other reforms, Part IV examines the urgent need to pass the
Pregnant Workers Fairness Act, a proposed federal law that would provide
a basic right to reasonable workplace accommodations for normal pregnancy
and related medical conditions, enhanced antiretaliation and privacy
protection for employees’ medical information when they invoke statutory
protections under federal employment discrimination law, a right to paid
sick leave for American workers, and occupational safety standards that
would reduce the risk of miscarriage.
I.
DEFINING MISCARRIAGE AND ITS HEALTH, EMOTIONAL, AND SOCIAL
IMPACTS
In the United States, a miscarriage is usually defined as loss of a
fetus before the twentieth week of pregnancy.
18
The causes of many
miscarriages are unknown.
19
The biological mechanisms to explain
miscarriage are not well-understood. Therefore, individuals who experience
17
Opinion, Meghan, The Duchess of Sussex, The Losses We Share, NY Times, Nov. 25, 2020,
https://www.nytimes.com/2020/11/25/opinion/meghan-markle-miscarriage.html.
18
Miscarriage, NEW OXFORD AM. DICTIONARY (3d ed. 2010).
19
Lesley Regan & Raj Rai, Epidemiology and the Medical Causes of Miscarriage, 14 BAILLIERES
CLINICAL OBSTETRICS & GYNAECOLOGY 839, 849 (2000).
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miscarriage are often left without answers to why a pregnancy failed.
Miscarriage is a very common experience. Although statistics on pregnancy
loss vary from country to country, researchers in the United States estimate
that, of confirmed pregnancies, about fifteen to twenty-five percent will end
in miscarriage.
20
Moreover, the risk of pregnancy loss is greater for certain
groups of women.
21
Older individuals are at higher risk of miscarriage.
22
African Americans also have a nearly two-fold higher risk of miscarriage
compared with whites, and a 93% greater hazard for a later miscarriage.
23
Other risks for miscarriage include obesity, prior history of miscarriage, and
certain health conditions (such as polycystic ovary disease, high blood
pressure, and diabetes).
24
Despite the incredibly common experience of
miscarriage, public perception differs substantially, perhaps because
miscarriage is so shrouded in secrecy. According to a recent survey of more
than one-thousand adults in the United States, 55% incorrectly believed
miscarriage was “rare” (occurring in 6% or fewer pregnancies).
25
Most miscarriages occur early in pregnancy and are generally
invisible to all but the closest family members.
26
Yet miscarriage is a
complex biological and psychological event with significant impacts. For
many who suffer a miscarriage, it may represent the loss of a desired future
child. It is generally unexpected, and its exact cause is often unclear, which
challenges a person’s sense of control and trust in their bodies. It may involve
considerable physical pain, potentially disturbing images of blood and tissue,
hospitalization, and surgery. Sometimes, a surgery is required to clear the
uterus. Fetal demise may occur weeks before the expulsion, which may evoke
uncertainty and stress.
Miscarriage is a traumatic event. After a miscarriage, most women
experience a period of intense emotional distress, typically for six weeks.
27
Symptoms of grief may be impossible to distinguish from depression, and
some women may continue to experience depressive symptoms for months
20
Id. at 840.
21
Not all persons who can become pregnant identify as women. Transgender men and non-
binary or gender nonconforming individuals can become pregnant. See, e.g., Juno Obedin-Maliver &
Harvey J. Makadon, Transgender Men and Pregnancy, 9 O
BSTETRIC. MED. 4 (2016). However,
because most persons who become pregnant identify as female, and because societal norms and
expectations regarding pregnancy are tightly wrapped up with gender, this Article frequently refers
to “pregnant women” or “women.” This is not to diminish the fact that unique and possibly even
worse discriminatory harms are likely to be experienced by transgender, non-binary and gender
nonconforming individuals who become pregnant while working. While these unique harms are
beyond the scope of the Article, it is hoped that the analysis presented here will be beneficial to all
pregnant workers who experience miscarriage, regardless of how they identify.
22
Id.
23
Sudeshna Mukherjee et al., Risk of Miscarriage Among Black Women and White Women in a
US Prospective Cohort Study, 177 A
M. J. EPIDEMIOLOGY 1271, 1276 (2013).
24
Regan & Rai, supra note 19, at 843–45.
25
Jonah Bardos et al., A National Survey on Public Perceptions of Miscarriage, 125 OBSTETRICS
& GYNECOLOGY 1313, 1315 (2015). Additionally, “[t]his misperception was more common among
men; the odds of men reporting that miscarriages are uncommon was 2.5 . . . that of women. Id.
26
Johanna Nynas et al., Depression and Anxiety Following Early Pregnancy Loss:
Recommendations for Primary Care Providers, T
HE PRIMARY CARE COMPANION FOR CNS DISORDERS
1, 3 (2015).
27
Id. at 2.
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8
or years.
28
Studies show that, after suffering a miscarriage, about two thirds
of women report they are still upset two years after the event and that the
experience affected their decisions about subsequent pregnancies.
29
Moreover, nearly 20% of women who experience miscarriage become
symptomatic for depression and/or anxiety, with symptoms typically lasting
one two three years, impacting quality of life and subsequent pregnancies.
30
Contrary to popular belief, a subsequent pregnancy after a miscarriage is
not a protective factor against depression or anxiety,
31
and mood symptoms
following a miscarriage do not always resolve with the birth of a subsequent
healthy child.
32
Further, research shows that miscarriage can have emotional
impacts on family members and a wide-range of individuals well beyond the
person who experiences physical pregnancy loss. For example, new studies
have found that when a pregnancy is desired, non-pregnant partners grieve
over a miscarriage more than once thought. According to a study of eighty-
three women who received treatment in a hospital setting for miscarriage,
along with their male partners, “[a]lthough the psychological impact of
miscarriage on men was less enduring when compared with that on women,
a significant proportion of men demonstrate[] psychological distress after
miscarriage.”
33
Miscarriage also represents a significant loss for intended
parents utilizing assisted reproductive technologies (ART), whether or not
their role is that of a gestational parent.
34
That is, the emotional experience
of reproductive loss spans across many reproductive contexts and is not
limited miscarriage’s physical aspects.
28
Id. at 2–3.
29
Id. at 5.
30
Id. at 2 (“Women at highest risk for psychiatric morbidity following miscarriage include those
who are younger, Hispanic, or of lower socioeconomic status and those with loss of a planned
pregnancy, a history of infertility or prior miscarriages, and poor social support or coping skills.”).
31
Id. at 5.
32
Id.
33
GWS Kong et al., Gender Comparison of Psychological Reaction After Miscarriage—A 1-Year
Longitudinal Study, 117 BJOG:
INTL J. OBSTETRICS & GYNECOLOGY 1211, 1211 (2010).
34
For example, those seeking to access procreation through surrogacy face an array of logistical,
emotional, legal, and financial obstacles, especially LGBT couples. Judith Stacey, Gay Parenthood
and the Decline of Paternity as We Knew It, 9 S
EXUALITIES 27, 30 (2006). Intended parents utilizing
surrogacy are often intimately involved in the lives of surrogates and are highly invested in becoming
parents. See Dana Berkowitz & William Marsiglio, Gay Men: Negotiating Procreative, Father, and
Family Identities, 69 J.
MARRIAGE & FAM. 366, 378 (2007); Darren Rosenblum, Pregnant Man? A
Conversation, 22 Y
ALE J.L. & FEMINISM 207 (2010). It should come as no surprise, then, that
intended parents utilizing surrogacy suffer emotional losses after a failed pregnancy, if not more so
than individuals who do not utilize surrogacy to procreate. See C
HRISTA CRAVEN, REPRODUCTIVE
LOSSES: CHALLENGES TO LGBTQ FAMILY-MAKING (2019). Moreover, research suggests that
surrogates also suffer a number of complex emotional losses after a miscarriage, even if they may
“emphatically disclaim any attachment to the fetus,” including loss of attachment to the success of
the pregnancy, loss of their relationship with the intended parents, and loss of status in the surrogate
community. See Zsuzsa Berend, Losses: Understandings of Pregnancy Loss and Assisted
Reproduction Among Surrogate Mothers, 24 M
ED. ANTHROPOLOGY Q. 240, 240, 243, 253–55, 257
(2010). Surrogates commonly identify with the intended parent’s or parents’ grief, yet they are often
not treated with much sympathy by anyone except other surrogates. Id. at 254–55.
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9
Despite the significant physical and emotional health effects of
miscarriage, federal employment laws do not adequately protect employees
who suffer adverse employment actions as a result of suffering a miscarriage
or being at increased risk of miscarriage. Nor does the law facilitate
necessary leave or work accommodations for workers affected by
miscarriage. Even worse, many workplaces and jobs, themselves, present
hazards to carrying a successful pregnancy, especially for low income and
non-white workers, yet workplace safety laws do not prohibit these
conditions in substance or practice. Indeed, as Part II demonstrates, the
common experience of miscarriage slips through the cracks of every major
federal employment statute intended to protect workers from discrimination
on the basis of sex, pregnancy, and disability, as well as federal laws
intended to guarantee protected medical leave and worker safety.
II.
MAJOR FEDERAL EMPLOYMENT LAWS FAIL TO PROTECT EMPLOYEES WHO
SUFFER ADVERSE EMPLOYMENT ACTIONS DUE TO MISCARRIAGE
A. The Pregnancy Discrimination Act
Congress passed the PDA in 1978 to prevent discrimination on the
basis of pregnancy, childbirth, or related medical conditions.
35
The PDA
defines sex discrimination under Title VII, to include discrimination
“because of pregnancy, childbirth, or related medical conditions.”
36
The PDA
forbids discrimination based on pregnancy when it comes to any aspect of
employment, including hiring, firing, pay, job assignments, promotions,
layoff, training, fringe benefits, such as leave and health insurance, and any
other term or condition of employment.
37
Employers with fifteen employees
or more are covered by the provisions provided in the PDA.
38
In its operation, the PDA works in two ways. First, the PDA prohibits
employers from taking an adverse employment action against an employee
on any of the defined bases (pregnancy, childbirth, or related medical
conditions) who are capable of performing their job duties.
39
In this sense,
the PDA can be understood as a simple nondiscrimination mandate. Second,
the PDA requires employers to treat pregnancy, childbirth, and related
medical conditions as they do other temporary disabilities.
40
That is, if a
woman is temporarily unable to perform her job due to a medical condition
related to pregnancy or childbirth, the employer must treat her in the same
way as it treats any other temporarily disabled employees who are similar
in their ability or inability to work, but unaffected by pregnancy. This
35
Pub. Law No. 95-555, 92 Stat. 2076 (1978).
36
Id.
37
U.S. EQUAL EMP. OPPORTUNITY COMMN, Pregnancy Discrimination,
https://www.eeoc.gov/laws/types/pregnancy.cfm (last visited Feb. 5, 2022).
38
See 42 U.S.C. § 2000e (2018); Pregnancy Discrimination, U.S. EQUAL EMP. OPPORTUNITY
COMMN, https://www.eeoc.gov/eeoc/publications/fs-preg.cfm (last visited Feb. 4, 2022).
39
Id.
40
Id.
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10
mandate can be conceptualized as an equal accommodation mandate, that
is, employers must accommodate pregnancy, childbirth, and related medical
conditions in a manner equal to its accommodation of employees with similar
temporary disabling conditions.
41
Finally, the availability of disparate-
impact liability under the PDA has the potential to make illegal facially
neutral policies that in fact fall more harshly on pregnant workers and
cannot be justified by business necessity (such as strict attendance policies,
harsh sick leave policies).
42
How have plaintiffs who have suffered
miscarriage fared under the PDA and its various theories of liability?
1. Miscarriage Stereotyping Cases under the PDA
Plaintiffs have fared relatively well, especially when there is direct
evidence
43
or strong circumstantial evidence of discrimination and the
plaintiff demonstrates excellent work performance. For example, in Gatten
v. Life Time Fitness, the plaintiff was an excellent employee.
44
She worked
at a health club for four years and had been promoted to supervisor.
45
She
suffered a stillbirth and then two subsequent miscarriages.
46
A few days
after the second miscarriage, her employer presented her with the choice of
accepting a demotion or resigning.
47
She went on short term disability leave
for a couple of months and then resigned.
48
In response to her pregnancy
discrimination claim, the gym said she was fired because she cried at work
too much and talked about her pregnancy losses.
49
The court denied her
employer’s motion for summary judgment, stating that a reasonable jury
could find that her demotion was the result of discriminatory animus.
50
In Ingarra v. Ross Educ., the plaintiff was a dental instructor at a
private, for-profit community college focusing on medical education in
Michigan.
51
After a year of employment and receiving a promotion to lead
instructor, she suffered a miscarriage at work. The next day, she was
demoted from her supervisory position and her schedule was reduced from
41
Id.
42
Deborah Dinner, The Costs of Reproduction: History and the Legal Construction of Sex
Equality, 46 H
ARV. C.R.-C.L. L. REV. 415, 436 (2011).
43
Direct evidence refers to evidence that, if believed, would establish a fact at issue without the
need to draw any inferences. See 1 M
CCORMICK ON EVIDENCE § 185 (Kenneth S. Broun et al. ed., 8th
ed. 2020). In disparate treatment cases, this is understood to require “a statement by the decision
maker that showed they were motivated by illegitimate considerations with respect to the at-issue
decision.” See T
IMOTHY P. GLYNN, CHARLES A. SULLIVAN & RACHEL S. ARNOW-RICHMAN,
EMPLOYMENT LAW: PRIVATE ORDERING AND ITS LIMITATIONS 577 (4
th
ed. 2019).
44
Gatten v. Life Time Fitness, Inc., No. 11-2962, 2013 WL 1331231, at *2 (D. Minn. Mar. 29,
2013)
45
Id. at *1.
46
Id. at *2–3.
47
Id. at *3.
48
Id.
49
Id.
50
Id. at *6.
51
Ingarra v. Ross Educ., LLC, No. 13-CV-10882, 2014 WL 688185, at *1 (E.D. Mich. Feb. 21,
2014).
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11
full-time to part-time.
52
Subsequently, her supervisor said her fertility
hormones were making her “moody” and making her act “weird.” Her
supervisor also repeatedly pressed Ingarra about her future plans for
pregnancy.
53
Ingarra sued under the PDA, claiming she was demoted and
ultimately terminated because of her pregnancy and miscarriages despite an
excellent work record.
54
On the basis of these facts, she defeated a motion for
summary judgment.
55
In Tuttle v. Advanced Roofing Sys., Inc., the court declined to grant
the defendant summary judgment on a wrongful termination claim relating
to miscarriage brought under the PDA.
56
In this case, a newly hired manager
informed the pregnant plaintiff that she was to report all absences and late
arrivals to work to him directly.
57
When, during the same week, the plaintiff
took three days off work because she suffered a miscarriage, she reported
the reason for her absences to a coworker and the general manager, whom
she had known longer than the new manager.
58
She called the new manager
personally on the third day to explain her absences, but he told her she was
fired.
59
The plaintiff filed suit, claiming wrongful termination and asserting
that the new manager had not given the alleged instruction,
60
that she had
never before been disciplined for absences from work, and that she had not
witnessed nonpregnant coworkers being disciplined in similar situations.
61
The court declined to grant the employer summary judgment, explaining
that the plaintiff should be able to advance with the pretext inquiry.
62
As these decisions illustrate, it is illegal discrimination under the
PDA to treat women workers unequally just because they become pregnant
or suffer a miscarriage. But how much and what kind of equality the PDA
imposes on employers beyond formal equality is less clear. As the next
section discusses, courts have had a harder time interpreting and applying
the PDA to protect women from discrimination when they experience
pregnancy-related temporary disabilities such as miscarriage that
necessitate accommodations at work.
2. Miscarriage Equal Accommodation Cases Under the PDA
To understand how federal courts have addressed miscarriage
accommodations cases under the PDA, a brief explanation of the leading
Supreme Court case addressing the scope of the PDA’s protections for
pregnancy-related temporary disabilities is required. In Young v. United
52
Id.
53
Id.
54
Id.
55
Id. at *6.
56
Tuttle v. Advanced Roofing Sys., Inc., 2016 WL 8716486 at *2–3 (S.D. Ind. Jan. 15, 2016).
57
Id. at *2.
58
Id. at *3.
59
Id.
60
Id. at *2.
61
Id. at *4.
62
Id. at *10.
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12
Parcel Service, Inc.,
63
an employee brought a PDA suit against United Parcel
Service (UPS), a multinational package delivery company, when UPS
refused to temporarily transfer her to a position that did not require heavy
lifting after she became pregnant.
64
Peggy Young worked as a delivery driver for UPS.
65
When she
became pregnant, her doctor advised her not to lift more than twenty pounds
during her first twenty weeks of pregnancy and no more than ten pounds
thereafter.
66
UPS refused to transfer her to a desk job, even though it had
provided this accommodation to many men who experienced comparable
short-term disabilities, and even to men who had lost their federal
Department of Transportation driving certifications for drunk driving.
67
The
plaintiff also showed that UPS maintained policies that provided
accommodations for several other categories of non-pregnant employees who
were similarly situated in their need for light-duty assignments, for
example, employees who were injured on the job, had disabilities covered
ADA, or had lost their DOT driving certifications.
68
She claimed that this
disparate treatment was enough to prove discrimination, that is, that the
PDA “requires an employer to provide the same accommodations to
workplace disabilities caused by pregnancy that it provides to workplace
disabilities that have other causes but have a similar effect on the ability to
work.”
69
UPS maintained the position that other temporarily disabled
employees were not appropriate comparators, because their situations were
allegedly too different to qualify as “similarly situated” to Young’s.
70
Refusing to defer to EEOC guidelines that supported Young’s interpretation
of the statute,
71
the Supreme Court largely took the side of UPS:
The problem with Young’s approach is that it proves too much. It
seems to say that the statute grants pregnant workers a “most-
favored-nation” status. As long as an employer provides one or two
workers with an accommodation—say, those with particularly
hazardous jobs, or those whose workplace presence is particularly
needed, or those who have worked at the company for many years,
or those who are over the age of 55—then it must provide similar
accommodations to all pregnant workers (with comparable physical
63
135 S. Ct. 1338 (2015).
64
Id. at 1344.
65
Id.
66
Id.
67
Id. at 1347.
68
Id.
69
Id. at 1349.
70
Id. at 1347.
71
Id. at 1352 (“The EEOC promulgated its 2014 guidelines only recently, after this Court had
granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current
guidelines take a position about which the EEOC’s previous guidelines were silent. And that position
is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC
explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-
favored-nation status? Why has it now taken a position contrary to the litigation position the
Government previously took? Without further explanation, we cannot rely significantly on the
EEOC’s determination”).
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13
limitations), irrespective of the nature of their jobs, the employer’s
need to keep them working, their ages, or any other criteria.
72
However, the Court ultimately provided a small window of opportunity that
would permit Young to prove pregnancy discrimination because she was not
treated the same as non-pregnant co-workers similar in the ability or
inability to work. It held that a plaintiff may, as a matter of law, use
similarly situated non-pregnant employees as comparators to create an
inference of this type of discrimination.
73
However, if the employer responds
to the plaintiff’s prima facie case by “offer[ing] an apparently ‘legitimate,
non-discriminatory’ reason for its actions,” the plaintiff must “provid[e]
sufficient evidence that the employer’s policies impose a significant burden
on pregnant workers and that the employer’s ‘legitimate, nondiscriminatory’
reasons are not sufficiently strong to justify the burden.
74
According to the
Court, the plaintiff can create an issue of material fact on this issue by
demonstrating that the defendant accommodates a “large percentage” of such
workers, while failing to accommodate a “large percentage” of pregnant
workers.
75
The heightened evidentiary requirement to prove PDA
discrimination where the plaintiff is seeking to receive the same
accommodation as a similarly situated non-pregnant worker is at odds with
the statutory language of Title VII, as amended by the PDA. The heightened
evidentiary standard announced by the Supreme Court in Young also
departs from the conventional evidentiary rule of civil litigation that the
burden of persuasion of fact is generally by a preponderance of the
evidence.
76
The principle that no heightened evidentiary standard or
particular type of evidence is required to prove discrimination under Title
VII has also repeatedly been confirmed by the Supreme Court.
77
Indeed, to
illustrate just how out-of-step the Young Court’s unique “large percentage”
72
Id. at 1349–50.
73
Id. at 1354–55. Furthermore, the Young Court announced the following modified version of
the McDonnell Douglas test for establishing a prima facie case of employment discrimination in
these cases. The plaintiff must prove: (i) “that she belongs to the protected class,’ (ii) “that she sought
accommodation,” (iii) “that the employer did not accommodate her,” and (iv) “that the employer did
accommodate others ‘similar in their ability or inability to work.’” Id. at 1354.
74
Id. (emphasis added).
75
Id. (emphasis added).
76
2 MCCORMICK ON EVIDENCE § 339 (Kenneth S. Broun et al. ed., 8th ed. 2020).
77
See, e.g., Desert Inc. v. Costa, 539 U.S. 90, 99-100 (2003) (holding that direct evidence is not
necessary for a plaintiff to prove a mixed-motive claim of discrimination under section 703(m) of
Title VII and that the Court should not depart from the “[c]onventional rul[e] of civil litigation [that]
generally appl[ies] in Title VII cases”) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 253
(1989) and Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.17 (1957)); Price Waterhouse v.
Hopkins, 490 U. S. 228, 253 (1989) (“Only rarely have we required clear and convincing proof where
the action defended against seeks only conventional relief”); Reeves v. Sanderson Plumbing
Products, Inc., 530 U. S. 133, 147 (2000) (rejecting the “pretext plus” doctrine requiring evidence
beyond that supporting the plaintiff’s prima facie case and holding that evidence that a defendant’s
explanation for an employment practice is “unworthy of credence” is “one form of circumstantial
evidence that is probative of intentional discrimination” and that nothing more is required as a
matter of law); McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973) (formulating a burden-shifting
framework that employees may utilize to prove discriminatory treatment prohibited by Title VII
with any type or amount of circumstantial evidence).
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requirement is, several appellate circuits’ have adopted the opposite rule
that class-wide, statistical evidence is inadmissible in individual disparate
treatment suits.
78
Although not explicit, perhaps the sheer number of
workers who experience pregnancy
79
or a fear by members of the Court that
requiring employers to accommodate pregnant workers just as they do
temporarily disabled non-pregnant workers would subvert the exclusion of
normal pregnancy from the Americans with Disabilities Act’s coverage
80
motivated the majority to adopt this unusual evidentiary framework. In any
case, according to Young, pregnant employees who experience a temporary
disability related to their pregnancies and who seek equal benefits or
accommodations—that is, the same treatment—as similarly disabled non-
pregnant employees will generally need especially strong evidence to
overcome defendants’ motion for summary judgment.
Young is a relatively new precedent, but several federal district and
appellate courts have applied Young’s holding in cases involving pregnant
employees seeking similar accommodations as non-pregnant employees.
While these courts regularly cite Young for the proposition that McDonnell
Douglas burden shifting framework applies in pregnancy accommodation
cases, they have not consistently followed Young’s direction with regard to
the comparative evidence required in such cases. Some courts have allowed
cases to proceed past summary judgment with little comparator evidence,
while others have required exact comparators or large numbers of
comparators. Many courts have relied on pre-Young circuit precedents in
analyzing pregnancy discrimination claims.
In Legg v. Ulster County, citing the Court’s “significant burden” and
“large percentage” language in Young, the Second Circuit returned to the
district court for retrial a case very similar in facts to Young.
81
The plaintiff,
Anne Marie Legg, the Ulster County’s only pregnant county corrections
officer, requested a light duty assignment with no direct inmate contact
during her pregnancy.
82
She had a history of pregnancy complications, so her
pregnancy was considered high risk for a miscarriage.
83
Despite a policy of
providing light duty to workers injured on the job,
84
the jail gave her two
78
See Laura T. Kessler, Employment Discrimination and the Domino Effect, 44 FLA. ST. L. REV.
1041, 1115 (2017).
79
See George Gao & Gretchen Livingston, Working While Pregnant Is Much More Common
Than It Used To Be, P
EW RES. CTR. (Mar. 31, 2015), https://www.pewresearch.org/fact-
tank/2015/03/31/working-while-pregnant-is-much-more-common-than-it-used-to-be/ (“The data
suggests that not only are a higher share of women expecting their first child continuing to work,
but they are working longer into their pregnancy.”). Although the U.S. Government does not collect
data on the percentage of pregnant women who work, the Bureau of Labor Statistics reports that
57.4% of women with a child less than one year old worked in 2019–2020, up slightly from 55.1% in
2018. B
UREAU OF LAB. STATS., U.S. DEPT OF LAB., EMPLOYMENT CHARACTERISTICS OF FAMILIES,
https://www.bls.gov/news.release/famee.toc.htm (select “Table 6. Employment status of mothers
with own children under 3 years old by single year of age of youngest child and marital status, 2019-
2020 annual averages”).
80
See discussion infra Part II.C.
81
820 F.3d 67, 75–76 (2d Cir. 2016).
82
Id. at 71.
83
Id.
84
Id.
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15
options: go on disability leave (with substantially reduced income) or get a
note from your doctor clearing you for full duty.
85
She did the latter, and the
county Sherriff granted her request for light duty as a courtesy for a few
months, but eventually reassigned her back to regular duty in a cell block
working directly with inmates.
86
In this position, while approximately seven
months pregnant, a fleeing inmate bumped her after a fight broke out in a
bathroom, which resulted in preterm labor.
87
She left work and did not
return until after she gave birth.
88
At trial, the judge granted judgment as a
matter of law for the defendants at the close of the plaintiff’s case, explaining
that there was no discrimination, because the policy of only granting light
duty for on-the-job injuries “applied across the board to everyone.”
89
As to
the disparate impact claim, the judge found that the Ulster County’s light
duty policy disadvantaged pregnant workers as compared to their non-
pregnant peers, but refused to shift the burden to the County to explain how
exclusion of pregnancy from its policy is necessary to its business. Instead,
the court demanded that Legg go even further by proving that all or mostly
all pregnant correctional officers will need light duty in order to continue
working.
90
On appeal, applying the rule announced in UPS v. Young, the Second
Circuit reversed on the disparate treatment claim, reasoning that while a
“large percentage of non-pregnant employees” were eligible for light duty
assignments, the County “categorically denied light duty accommodations to
pregnant women.”
91
Because no pregnant guard needing light duty ever
would receive light duty while guards injured on the job almost always would
under this policy, the Second Circuit concluded that the policy “imposed a
significant burden on pregnant employees.”
92
Therefore, the court concluded
that Legg had adduced evidence sufficient for a jury to have considered
whether the refusal to accommodate her was motivated by discriminatory
intent.
93
While a seeming victory as a legal matter, after the Second circuit
85
Id.
86
Id. Legg claimed that her reassignment to full duty with regular contact with inmates was
taken in retaliation for charges she had filed with the EEOC for sex discrimination in promotional
opportunities, but that claim was dismissed by the trial court early in the litigation. The trial court
reasoned, “[a]lthough Plaintiff Legg has alleged sufficient facts from which a fact finder might be
able to conclude that her filing of her EEOC charge was the ‘but for’ cause of Defendants’ decision to
reassign her and to discipline her, she has failed to demonstrate that these actions constitute
material adverse employment actions and, thus, her retaliation claim must fail.” Meadors v. Ulster
County, 984 F. Supp. 2d 83, 100 (N.D.N.Y. 2013), vacated and remanded sub nom. Legg v. Ulster
County, 820 F.3d 67 (2d Cir. 2016).
87
820 F.3d at 71.
88
Id.
89
Id.
90
See Corrected Brief of Amici Curiae American Civil Liberties Union Foundation et al., at 1,
Legg v. Ulster Co., 820 F.3d 67 (2d Cir. 2016), Nos. 14–3636, 14–3638, 14–4635, 2018 WL 551796,
at *1.
91
820 F.3d at 75–76.
92
Id.
93
The court did not reach her disparate impact arguments. Id. at 74.
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remanded to the district court for a new trial,
94
Legg lost her claims of
disparate treatment and disparate impact.
95
In Martin v. Winn–Dixie Louisiana, Inc., the plaintiff, a manger of a
Winn-Dixie supermarket, survived summary judgment by citing her
employer’s failure to provide the lifting restriction recommended by her
doctor when two other non-pregnant coworkers had received lifting-
restriction accommodations.
96
Martin had worked at Winn-Dixie for
seventeen years, working her way up from part-time cashier to co-
manager.
97
Of her eight primary duties, only one involved lifting, but when
her doctor recommended that she not lift more than ten pounds throughout
her pregnancy, Winn-Dixie told her they could not accommodate this
restriction and that she could either take a leave of absence or accept a
demotion to a part-time position.
98
The court rejected Winn-Dixie’s proposed
standard that Martin must introduce evidence of “nearly identical
comparators,” stating that two employees who had served in the same
position as plaintiff, but in different locations and at different times, were
“sufficiently close comparators [to meet] the PDA’s minimum.”
99
In its
analysis, the court ignored Young, relying on a pre-Young Fifth Circuit
decision, allowing the case to survive summary judgment and move on to
trial without reference to whether the defendant afforded lifting restrictions
to a “large percentage” of similarly situated non-pregnant workers.
100
Although these two cases demonstrate that some plaintiffs seeking
equal accommodations as similarly situated non-pregnant co-workers have
been able to succeed in getting past a motion for summary judgment and
reaching a jury even after Young’s announced more stringent evidentiary
requirements, this no guarantee of winning a suit for denial of
94
Id. at 70.
95
Legg v. Ulster Cnty., No. 109CV550, 2017 WL 3207754, at *1 n.2, *10 (N.D.N.Y. July 27,
2017). The jury found that Plaintiff had failed to establish a disparate treatment claim. Id. at *1 n.2.
As to the disparate impact claim, which was tried by the court, the district court determined that
Legg had failed to present evidence that all pregnant women were unable to perform full duty
assignments, and therefore she did not establish an evidentiary basis from which the court could
conclude that the county policy disparately impacted pregnant women as a class. Id. at *9. The
Second Circuit affirmed, sadly and irrationally, relying in part on the second doctor’s note that Legg
obtained at the county’s direction clearing her for full duty so she would not be forced to take a
disability leave after the county denied her request (with medical documentation) for a light duty
assignment. Legg v. Ulster Cnty., No. 17-2861, 2020 WL 6325850, at *1 (2d Cir. Oct. 29, 2020).
Offering cold comfort, it said, “[w]e are sympathetic to the difficult choice that Legg faced between
working full duty in a hazardous environment and losing substantial income by going on leave and
receiving only disability benefits. . . . On the record before us, however, we are compelled to conclude
that the district court did not clearly err in finding that the evidence presented by Legg was
insufficient to sustain her claim.” Id. at *5.
96
132 F. Supp. 3d 794, 802, 819–20 (M.D. La. 2015).
97
Id. at 801–02.
98
Id. at 802–03.
99
Id. at 800, 819–20.
100
Id. at 820 (quoting Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259–60 (5th Cir.2009)) (“The
employment actions being compared will be deemed to have been taken under nearly identical
circumstances when the employees being compared held the same job or responsibilities, shared the
same supervisor or had their employment status determined by the same person, and have
essentially comparable violation histories.”).
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accommodations at trial. Moreover, other courts have awarded summary
judgment to employers in cases with similar facts.
In Durham v. Rural/Metro Corp.,
101
an EMT, informed her manager
when she became pregnant that her doctor instructed her not to lift over fifty
pounds.
102
Durham and her manager agreed that she would not be able to
continue her normal role on the truck, where EMTs had to lift up to 100
pounds as they regularly lifted patients and stretchers.
103
Durham requested
to be assigned to light duty or dispatch, but her manager told her that light
duty was only available to employees injured on the job and that no dispatch
positions were currently available.
104
Instead, Durham was offered ninety
days of unpaid personal leave, which she did not accept because she
understood the leave policy to require her not to seek other employment, and
she was removed from the schedule.
105
The district court relied on Young’s
“large percentage” test to grant Rural/Metro summary judgment regarding
their failure to assign Durham to light duty, stating that although Durham
had established a prima facie case, she had not demonstrated that
Rural/Metro’s non-discriminatory reason for denying the accommodation
was pretextual.
106
According to Rural/Metro, their failure to accommodate
Durham was not discriminatory because their light duty policy was only
available to those injured on the job.
107
The court cited Young, stating “that
a plaintiff can establish that an employer’s policy puts a significant burden
on pregnant workers ‘by providing evidence that the employer
accommodates a large percentage of nonpregnant workers while failing to
accommodate a large percentage of pregnant workers[,]’” but that
Rural/Metro’s light work policy “accommodates only workers injured on the
job, and excludes all other workers, including pregnant workers.”
108
The
Eleventh Circuit rejected this analysis as applied to a plaintiff’s prima facie
case,
109
but did not decide whether the limitation of accommodations to
employees injured at work were enough to show pretext, leaving it to the
district court to consider on remand.
110
In Santos v. Wincor Nixdorf, Inc., the Fifth Circuit affirmed the
district court’s grant of summary judgment to the defendant, stating that
101
Durham v. Rural/Metro Corp., 955 F.3d 1279, 1286 (11th Cir. 2020) (citing Legg, 820 F.3d at
74).
102
No. 16-CV-01604, 2018 WL 4896346, at *1 (N.D. Ala. Oct. 9, 2018).
103
Id.
104
Id.
105
Id.
106
Durham v. Rural/Metro Corp., No. 16-CV-01604, 2020 WL 7024892, at *4 (N.D. Ala. Nov.
30, 2020).
107
Id. at *3.
108
Id. (quoting Young, 135 S. Ct. at 1354). In this way, the court in Durham gave Young’s “large
percentage” language the most restrictive possible interpretation, suggesting that this language
imposes not just as a numerical requirement that the plaintiff present evidence that her employer
accommodated many temporarily disabled non-pregnant employees similar in their ability or
inability to work as the plaintiff, but also a qualitative requirement that her comparators include
accommodated non-pregnant employees whose disabilities were incurred outside the workplace.
109
Durham, 955 F.3d at 1286.
110
Id. at 1287.
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the plaintiff had failed to identify comparators in her same position
(relatively new, temp-agency employees in their training period needing to
work from home).
111
Santos was a project analyst placed by a staffing agency
at Wincor, a corporation providing software and technology systems for
retailers and banks. She was fired shortly after being given permission to
work from home due to complications of her pregnancy.
112
Santos was
informed by her doctor that she needed to work from home following a
hospitalization in the third term of her high-risk pregnancy due to
complications.
113
The court relied on a pre-Young Fifth Circuit precedent,
stating that to survive summary judgment “an employee who proffers a
fellow employee as a comparator [must] demonstrate that the employment
actions at issue were taken ‘under nearly identical circumstances.’”
114
This
requirement directly contradicted Young’s holding that that the plaintiff and
comparators do not have to be “similar in all but the protected ways.”
115
Moreover, although Santos did not have much persuasive comparative
evidence, she did present other circumstantial evidence of pregnancy
discrimination, including the timing of the decision to terminate her and
Wincor’s failure to give warnings about her allegedly poor performance
before she started working at home.
116
Beyond Young’s substantive hurdles, recent decisions suggest the
difficulty that plaintiffs may face obtaining discovery demonstrating that an
employer accommodates a “large percentage” of non-pregnant workers
similar in their ability or inability to work, while failing to accommodate a
“large percentage” of pregnant workers.
117
For example, in Equal
Employment Opportunity Comm’n v. TriCore Reference Labs.,
118
Kellie
Guardiana, a phlebotomist, filed a charge with the EEOC,
119
stating that
when she requested accommodations to her work schedule and
responsibilities because her rheumatoid arthritis was exacerbated by a
pregnancy,
120
Tri-Core gave her the option to apply for other jobs through
the company’s regular application process but did not allow her to transfer
positions.
121
As part of its investigation, the EEOC asked Tri-core for a list
of pregnant and non-pregnant employees who had sought or were granted
111
778 F. App’x 300, 304 (5th Cir. 2019).
112
Id. at 301–02.
113
Santos v. Wincor Nixdorf, Inc., No. 16-CV-440, 2018 WL 1463710, at *1 (W.D. Tex. Mar. 23,
2018).
114
778 F. App’x at 303 (quoting Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260 (5th
Cir. 2009).
115
Young v. United Parcel Serv. Inc., 135 S. Ct. 1338, 1354 (2015).
116
778 F. App’x 300, 303 (5th Cir. 2019).
117
135 S. Ct. at 1354.
118
849 F.3d 929, 938 (10th Cir. 2017).
119
Plaintiffs are required to file a “Charge of Discrimination” with the EEOC prior to filing a
lawsuit. U.S.
EQUAL EMP. OPPORTUNITY COMMN, Filing a Charge of Discrimination,
https://www.eeoc.gov/employees/charge.cfm (last visited Feb. 5, 2022); 42 U.S.C. § 2000e-5(e)(1)
(2018) (stating that charges of discrimination must be filed with the E.E.O.C. within 180 days or
within 300 days if charges are filed with an equivalent state entity).
120
Specifically, “her doctors recommend[ed] she sit for at least 75 percent of her shift and avoid
exposure to infectious diseases, a common risk faced by phlebotomists.” 849 F.3d at 934.
121
Id. at 934.
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19
any accommodation in the prior three year.
122
When Tri-Corp refused to
comply, the EEOC issued a subpoena for this information, and, ultimately,
submitted an application to the federal court requesting an order to show
cause why the subpoena should not be enforced.
123
The district court denied
the EEOC’s application as overly broad and the Tenth Circuit affirmed.
124
This discovery dispute exemplifies an added layer of legal and evidentiary
complexity that pregnant women needing accommodations and who seek
equal treatment may face under the Young standard. Although the
evidentiary burden for these PDA claims is higher than for other Title VII
disparate treatment claims, plaintiffs may not be able to access the evidence
necessary to overcome summary judgment.
And plaintiffs lose even when they do access systemic evidence. For
example, in a 2018 case in Tennessee, Cassandra Adduci, who had asked her
employer, FedEx, for a lighter duty, created a spreadsheet of 261 other
employees who were given temporary work assignments. The court still
found that those instances were not similar enough to her situation and
denied her motion.
125
Large employers also have the ability to settle individual cases with
women who have been denied equal accommodations for pregnancy or
pregnancy-related medical complications, frustrating systemic change. For
example, from 2015 to 2019, Amazon routinely fired pregnant warehouse
(“fulfillment center”) workers who asked for pregnancy-related
accommodations, such as more frequent bathroom breaks or fewer
continuous hours on their feet, even though Amazon routinely places non-
pregnant injured workers unable to perform their regular job functions on
light duty, with the company logging nearly 25,000 instances of
reassignment to light duty following an injury across its facilities since
2017.
126
When pregnant Amazon workers sued Amazon for
discrimination,
127
Amazon settled out of court to avoid legal precedents.
128
The story of Patty Hernandez, a former packer at Amazon’s OAK4
122
Id. at 935.
123
Id.
124
Id. at 942. Although the decision in part was influenced by the EEOC’s failure to argue in
the district court that the comparative data was needed, the court stated that even if this argument
had been made, the request still may have been overly broad. Id.
125
See Adduci v. Fed. Express Corp., 298 F. Supp. 3d 1153, 1164 (W.D. Tenn. 2018).
126
Letter from Senators Kirsten Gillibrand, Bernard Sanders, Robert Casey, Jr., Richard
Blumenthal, Sherrod Brown, and Elizabeth Warren, to Hon. Charlotte Burrows, Chair, U.S. Equal
Employment Opportunity Commission (Sept. 9, 2021),
https://www.gillibrand.senate.gov/imo/media/doc/Letter%20to%20EEOC%20Amazon%20Pregnancy
%20Accomodations%209.9.21.pdf.
127
Id.
128
See Alfred Ng & Ben Fox Rubin, Amazon Fired These 7 Pregnant Workers, Then Came the
Lawsuits, C
NET (May 6, 2019), https://www.cnet.com/news/features/amazon-fired-these-7-pregnant-
workers-then-came-the-lawsuits/; Allison Prang, Senators Seek Investigation of Amazon Over
Treatment of Pregnant Workers, WSJ (Sept. 10, 2021, 11:09 PM),
https://www.wsj.com/articles/senators-seek-investigation-of-amazon-over-treatment-of-pregnant-
workers-11631294571.
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20
fulfillment center in Tracy, California,
129
is emblematic this situation. When
Hernandez learned she was pregnant, she submitted a doctor’s note and
repeatedly asked Amazon for lighter duty, but was denied.
130
She continued
to be assigned to lift bins filled with merchandise that weighed up to fifty
pounds for ten hours at a time.
131
Hernandez miscarried at seven weeks.
132
In sum, consistent with the cautious optimism by some experts at the
time of the decision,
133
Young appears to have had a mixed consequences for
temporarily disabled pregnant workers seeking the same workplace
accommodations as non-pregnant disabled workers under the PDA. On the
one hand, where plaintiffs have strong, almost class-like comparative
evidence, the decision in Young has enabled pregnant workers to at least get
to a jury on the question of whether denial of accommodations given to
temporarily disabled non-pregnant workers violates the PDA. On the other
hand, Young may have actually made it more difficult for some pregnant
workers to access workplace accommodations for pregnancy under the PDA
by suggesting that plaintiffs in individual disparate treatment cases must
have evidence of systemic disparate treatment to prevail.
134
This is
especially difficult for those who work for small employers
135
or in sex-
segregated occupations,
136
where finding comparators of large numbers of
129
Lauren Kaori Gurley, Amazon Denied a Worker Pregnancy Accommodations. Then She
Miscarried., V
ICE.COM (July 20, 2021), https://www.vice.com/en/article/g5g8eq/amazon-denied-a-
worker-pregnancy-accommodations-then-she-miscarried.
130
Id.
131
Id.
132
Id.
133
Joanna L. Grossman, Expanding the Core: Pregnancy Discrimination Law As It Approaches
Full Term, 52 I
DAHO L. REV. 825, 857 (2016) (expressing cautious optimism of “Young’s contribution
to pregnancy discrimination law”).
134
Perhaps this outcome should not be surprising. The lower courts’ inconsistency in application
of Young were predicted by scholars writing about the decision, critical that “the Court imposed new
subjective requirements on pregnant workers” that “were not defined and will create considerable
ambiguity in litigating pregnancy claims[.]” Lynn Ridgeway Zehrt, A Special Delivery: Litigating
Pregnancy Accommodation Claims After the Supreme Court’s Decision in Young v. United Parcel
Service, Inc., 68 R
UTGERS U. L. REV. 683, 705 (2016); see also Lara Grow, Pregnancy Discrimination
in the Wake of Young v. UPS, 19 U.
PA. J.L. & SOC. CHANGE 133, 156 (2016) (noting that Young
fundamentally fails to resolve the circuit split regarding how to identify the relevant comparator
when establishing a prima facie case of disparate treatment under the PDA and thus potentially
risks creating even more confusion).
135
See Helene Jorgensen & Eileen Appelbaum, Expanding Federal Family and Medical Leave
Coverage: Who Benefits from Changes in Eligibility Requirements? (2014), C
TR. FOR ECON. AND POLY
RESCH., https://cepr.net/documents/fmla-eligibility-2014-01.pdf, at 9 (“Women of childbearing age
are disproportionally employed by smaller employers. . . .”). Cf. ” N
ATIONAL WOMENS LAW CENTER,
REFORM MATTERS: WOMEN AND EMPLOYER-SPONSORED INSURANCE (2008), https://nwlc.org/wp-
content/uploads/2015/08/Section%203%20Issues%20in%20Health%20Reform.pdf (citing Paul
Fronstin & Ruth Helman, Employee Benefit Research Inst., Issue Brief No. 253, Small Employers
and Health Benefits: Findings from the 2002 Small Employer Health Benefits Survey (Jan. 2003))
(“[W]omen are more likely than men to work for small businesses who do not offer health
insurance.”).
136
For example, according to labor force statistics from the 2021 U.S. Census Bureau Current
Population Survey, 96.8% of childcare workers, 94.6% of preschool and kindergarten teachers, 92.5%
of secretaries and administrative assistants, 88.9% of nursing assistants, 88.7% of maids and
housekeeping cleaners, 87% of home health aides, and 83% of manicurists and pedicurists are
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21
accommodated non-pregnant workers is difficult if not impossible. More
generally, all women claiming disparate treatment under Young’s
heightened evidentiary standard may face challenges obtaining the
necessary class-wide comparative evidence.
a. The PDA and Bedrest
Bedrest is “probably the most commonly prescribed intervention for
preventing miscarriage. . . .”
137
Bedrest is frequently advised by doctors for
women who have had previous miscarriages or who show symptoms
indicating a risk of miscarriage.
138
Despite controversy over its
effectiveness,
139
doctors regularly recommend bedrest therapy to treat and
prevent a variety of pregnancy complications including “preterm labor,
placenta previa or abruption, incompetent cervix, premature rupture of
membranes, pregnancy-induced hypertension, multiple gestations, uterine
irritability, and fetal growth retardation, as well as bleeding of early
pregnancy and threatened miscarriage.”
140
There is no single definition of
bedrest. Treatment varies from resting periodically at home to full-time bed
rest in a hospital with monitoring.
141
Some level of bedrest therapy is
recommended in close to twenty percent of pregnancies,
142
with 11.4 percent
women. See BUREAU OF LAB. STATS., U.S. DEPT OF LAB., CURRENT POPULATION SURV., EMPLOYED
PERSONS BY DETAILED OCCUPATION
, SEX, RACE, AND HISPANIC OR LATINO ETHNICITY,
https://www.bls.gov/cps/tables.htm#annual (under “CPS Tables” select “11. Employed persons by
detailed occupation, sex, race, and Hispanic or Latino ethnicity”). Further, African American women
and Latinas are concentrated in sex-segregated occupations that may pose a risk to healthy
pregnancy, such as nursing assistants, home health aides, vocational nurses, agricultural sorters
and pickers, maids and housekeepers, childcare workers, and laundry and dry-cleaning workers. Id.
137
A. Aleman et al., Bed Rest During Pregnancy for Preventing Miscarriage, 2 COCHRANE
DATABASE SYSTEMATIC REVIEWS 1, 3 (2005).
138
Id.
139
Studies show that bedrest presents risks to pregnant women without any proven benefit to
the fetus. See S
OCIETY FOR MATERNAL-FETAL MEDICINE, FIFTEEN THINGS PHYSICIANS AND PATIENTS
SHOULD QUESTION (2019), http://www.choosingwisely.org/wp-content/uploads/2015/02/SMFM-
Choosing-Wisely-List.pdf; Christina A. McCall et al., “Therapeutic” Bed Rest in Pregnancy: Unethical
and Unsupported by Data, 121 O
BSTETRICS & GYNECOLOGY 1305, 1305 (2013). McCall and coauthors
argued that doctors’ continued use of bedrest without proven benefits “reflects a ‘risk distortion’
common to reasoning regarding pregnancy. Namely, it attends to fetal risk and works toward its
elimination without due regard for risks or burden to pregnant women. Indeed, women are often
expected (and willing) to accept such burden if it has the potential to benefit the fetus.” Id. at 1307.
Feminist scholars have written extensively on the law’s role in defining how women should mother,
beginning with expectations about their behavior during pregnancy. See, e.g., Dara Purvis, The Rules
of Maternity, 84 T
ENN. L. REV. 367, 368–69 (2017) (“Rule 1 begins in pregnancy, with the message
that “your body is your child's vessel.” During pregnancy, women are counselled that doctor knows
best.”); Carol Sanger, Separating from Children, 96 C
OLUM. L. REV. 375, 384 (1996) (“In a variety of
settings law has regulated women’s decisions about maintaining their connections with children.
Thus restrictions on the employment of pregnant women, of women who might become pregnant, or
of women with children already, have been perfectly legal for most of this century.”).
140
Judith H. Maloni, Averting the Bed Rest Controversy, 2 AWHONN LIFELINES 64, 64 (1998).
141
Bed Rest, AM. PREGNANCY ASSN (Oct. 11, 2019, 2:54 PM),
https://americanpregnancy.org/pregnancy-complications/bed-rest/. See also Maloni, supra note 140,
at 64 (“There is no standard definition of antepartum bed rest.”).
142
Catherine Bigelow & Joanne Stone, Bed Rest in Pregnancy, 78 MT. SINAI J. MED. 291, 292
(2011).
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22
of pregnant women spending at least a week in bed and 12.9 percent having
to stop or reduce work due to bedrest therapy.
143
The PDA offers little job protection to women with pregnancy
complications requiring bedrest. In these circumstances, courts often find
that the plaintiffs’ inability to do her job or that her inability to demonstrate
other similarly situated employees were treated differently constitute a
legitimate reason for termination.
There are many cases in this vein. For example, in Spees v. James
Marine, Inc.,
144
the Sixth Circuit affirmed the district court’s grant of
summary judgment to an employer who terminated an employee as a result
of her having to go on bed rest. The plaintiff, Heather Spees, was hired as a
welder for JMI, a construction facility building cargo barges, towboats, and
drydocks for Kentucky’s marine freight transportation industry.
145
Of the
935 labor positions at JMI, only four were held by women, and Spees was
the only woman assigned to her particular facility. Like many labor jobs,
welding work at JMI was physically demanding, requiring “heavy lifting,
climbing up ladders and stairs, maneuvering into barge tanks, and,
occasionally, the overhead handling of equipment.”
146
Spees’s foreman
described her as “a good employee” and “a good welder.”
147
In addition, [t]he
summer of 2007 was also particularly hot, with temperatures reaching 100
degrees Fahrenheit or more on multiple occasions . . . . [and] [w]elders are
exposed to fumes, dust, and organic vapors in the course of their work.”
148
After successfully completing her training period, Spees’s became
pregnant.
149
Two years prior to the pregnancy in question, she had suffered
a miscarriage.
150
Spees visited her doctor who advised her that there was “no
problem” working as a welder while pregnant.
151
Despite having a doctor’s
note clearing Spees to continue working,
152
JMI demoted her to working the
night shift in the “tool room,” a position that involved physical tasks that
were just as demanding as the welding position,
153
was just as hot,
154
“more
boring,”
155
and posed scheduling difficulties given Spees’s status as a single
mother.
156
Among other reasons for the demotion, a safety officer informed
Spees that the physician’s note “wasn’t good enough” and that working as a
143
Robert L. Goldberg et al., Bed Rest in Pregnancy, 84 OBSTETRICS & GYNECOLOGY 131, 134
(1994).
144
617 F.3d 380, 395 (6th Cir. 2010).
145
Id. at 384; see also THE AMERICAN WATERWAYS OPERATORS, THE TUGBOAT, TOWBOAT AND
BARGE INDUSTRY IN KENTUCKY (n.d.),
https://www.americanwaterways.com/sites/default/files/Fact%20Sheet_Kentucky%206-11.pdf.
146
Spees, 617 F.3d. at 34.
147
Id. at 385.
148
Id.
149
Id.
150
Id.at 385.
151
Id.
152
Id.
153
Id. at 385–86.
154
Id.
155
Id. at 392.
156
Id. at 387.
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welder “was not women’s work.”
157
A foreman, who happened to be Spees’s
brother, indicated that “he was motivated by concern for the health of his
sister’s unborn child.”
158
Finally, a manager stated that Spees “is not going
to weld no matter what your doctor is going to do.”
159
Because of the problems
Spees was experiencing with the tool room position, JMI management
advised Spees to try to seek medical leave.
160
Spees complied, returning from
doctor with a note stating that she required bedrest due to an incompetent
cervix,
161
and JMI immediately fired her.
162
At trial, Spees proceeded on a
mixed-motive theory that her pregnancy was a motivating factor for her
termination.
163
The court held that the plaintiff’s termination was “based on
a combination of her being unable to work and her lack of any available
medical leave, not upon her pregnancy per se.”
164
The court acknowledged
that the plaintiff’s “pregnancy played a role in her termination,” but
determined that the plaintiff’s pregnancy being “a link in the chain of the
events that resulted in her firing” was insufficient to show mixed-motive
discrimination which required “evidence that JMI was motivated by Spees’s
pregnancy in making its decision to terminate her.”
165
Spees presents a case
of a pregnant worker who was both stereotyped on the basis of her pregnancy
and then, later, needed an accommodation due to her risk of miscarrying;
166
either way, the PDA left her unprotected.
The Fifth Circuit also affirmed a district court’s grant of summary
judgment to the defendant when an employee was terminated after
informing her employer that she needed to go on bed rest.
167
The plaintiff,
Heather Appel, began working for Inspire, a pharmaceutical sales company,
as a territory manager in April 2018.
168
According to the plaintiff, in
September 2018, she was flown to a company event and recognized for being
157
Id. at 386.
158
Id.
159
Id. at 393.
160
Id. at 387.
161
Id.
162
Id.
163
Id. at 394 (citing White v. Baxter Healthcare Corp., 533 F.3d 381, 401 (6th Cir.2008)). The
mixed-motive theory of recovery under Title VII was first announced by the Court in Desert Palace,
Inc. v. Costa, 539 U.S. 90 (2003). In a mixed-motive case, an employer is in violation of Title VII if
an adverse employment action is motivated by discriminatory and nondiscriminatory reasons, the
latter being sufficient to motivate the adverse decision. However, if the employer would have made
the same decision in the absence of the discrimination, the plaintiff’s remedy is limited to declaratory
and injunctive relief, attorney’s fees, and costs (i.e., no damages, back pay, or reinstatement). See
Desert Palace, Inc. v. Costa, 539 U.S. 90, 93–94 (2003); Civil Rights Act of 1991 § 107, 42 U.S.C. §
2000e-5(g) (2012).
164
Id. at 395.
165
Id. at 394.
166
However, it should be noted that a reasonable inference from the record is that Spees was
driven out of the workplace. That is, rather than actually needing an accommodation, a reasonable
inference can be drawn that JMI’s actions and statements were undertaken to pressure Spees into
claiming a temporary disability as a means of either firing her or forcing her on leave.
167
Appel v. Inspire Pharm., Inc., 428 F. App’x 279, 282 (5th Cir. 2011).
168
Id. at 281.
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a top salesperson.
169
Around the same time, she informed Inspire that she
was experiencing a high-risk pregnancy and submitted a doctor’s note
stating she needed to go on bed rest for the rest of her pregnancy.
170
Because
of complications, Appel had to undergo cerclage, a surgical procedure to sew
her cervix closed to prevent miscarriage.
171
Although Appel’s supervisor
talked to her about possible accommodations for her pregnancy on the flight
back from the event, her employment was terminated the following day.
172
Appel argued that her supervisor’s statement that “she was fired because he
believed Appel could not perform all the duties in her job description . . .
because of complications arising from her pregnancy” showed direct evidence
of discrimination based on pregnancy.
173
However, the court determined that
the statement was “actually evidence that she was terminated because she
was incapable of performing her job functions because of medical
complications specific to her pregnancy.”
174
The court also held that the
plaintiff could not make a prima-facie claim of discrimination using the
McDonnell Douglas burden-shifting framework because she could not meet
the second requirement of showing “that she was qualified for the position
given the medical restrictions placed by her physician during the high-risk
pregnancy.”
175
Appel claimed that she was able to maintain sales
relationships with doctors using phone and e-mail communications, but the
court held that Inspire had demonstrated that face-to-face visits were an
essential part of the job.
176
Several district courts have also granted summary judgment to
defendants in cases where plaintiffs brought claims under the PDA after
being terminated following a need for bed rest. In Soodman v. Wildman,
Harrold, Allen & Dixon, the district court granted summary judgment for
the defendants on the plaintiff’s PDA claim resulting from her termination
while on leave for bed rest.
177
The court stated that “an employer must ignore
an employee’s pregnancy but not her absence from work, unless like
absences of nonpregnant employees go unheeded.”
178
The court found that
the employer’s dismissal of three other employees on medical leave
demonstrated that the plaintiff was terminated “because of her absence from
the workplace, not because of her pregnancy.”
179
In Sanchez-Estrada v.
MAPFRE Praico Ins. Co., the plaintiff alleged that she was suspended from
her work as a result of her pregnancy that included two occasions where she
169
Brief for Appellant at 4, Appel v. Inspire Pharm., Inc., 428 F. App’x 279 (5th Cir. 2011) (No.
10-10960).
170
Id.
171
Id.
172
Id.
173
428 F. App’x at 282.
174
Id.
175
Id.
176
Id. at 283.
177
No. 95 C 3834, 1997 WL 106257, at *9 (N.D. Ill. Feb. 10, 1997).
178
Id.
179
Id.
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25
had to stay home on bedrest.
180
The court granted the defendants’ motion for
summary judgment, finding that the plaintiff had not submitted evidence
that she had properly documented her absences as pregnancy-related and
also not demonstrated that other similarly situated non-pregnant employees
were treated differently with regard to absences.
181
b. The PDA and Depression Following Miscarriage
Women commonly experience depression, increased anxiety, and
grief following a miscarriage.
182
Depression and grief are most common in
the first six months following a miscarriage, but many women continue to
suffer from depression and grief up to three years later.
183
One study
revealed that fifty percent of women suffered from major depressive disorder
following a miscarriage.
184
Women without partners, who lack social
support, have a history of mental illness, have no children, or who have
experienced previous miscarriages are at a greater risk of severe
psychological distress.
185
Women who conceived using reproductive
assistance are also more likely to experience severe depression and anxiety
following a pregnancy loss.
186
Miscarriage also has potential long-term
effects on mental health. One recent study, for example, found that among
women with mental health issues, those who have previously experienced
miscarriage are more likely to attempt suicide during a subsequent
pregnancy or postpartum period.
187
Although still an area of research, the
major hormonal changes experienced during miscarriage are a suspected
cause of depression.
188
Given the extensive scientific evidence on the short
and long-term mental health consequences of miscarriage, one would expect
that PDA should prohibit discrimination against (and require equal
accommodations of) workers who experience depression, anxiety, or grief
after a miscarriage, since these mental health effects are “medical
180
126 F. Supp. 3d 220, 234 (D.P.R. 2015).
181
Id.
182
Olga BA van den Akker, The Psychological and Social Consequences of Miscarriage, 6
E
XPERT REV. OBSTETRICS & GYNECOLOGY 295, 297 (2011).
183
Francine deMontigny, Women’s Persistent Depressive and Perinatal Grief Symptoms
Following a Miscarriage: The Role Of Childlessness and Satisfaction with Healthcare Services, 20
A
RCHIVE WOMENS MENTAL HEALTH 655, 659–61 (2017).
184
Trevor Friedman & Dennis Gath, The Psychiatric Consequences of Spontaneous Abortion,
155 B
RITISH J. PSYCHIATRY 810, 810 (1989).
185
Van den Akker, supra note 182, at 297.
186
CS Cheung et al., Stress and Anxiety-Depression Levels Following First-Trimester
Miscarriage: A Comparison Between Women Who Conceived Naturally and Women Who Conceived
with Assisted Reproduction, 120 BJOG:
AN INTL J. OBSTETRICS & GYNAECOLOGY 1090, 1096 (2013).
187
Florence Gressier et al., Risk Factors for Suicide Attempt in Pregnancy and the Post-Partum
Period in Women with Serious Mental Illnesses, 84 J.
PSYCHIATRIC RES. 284, 286–87 (2017) (“The
hypothesis could be that for some of these women, getting involved in another pregnancy is difficult,
or that the new pregnancy reactivates the trauma of the previous terminated pregnancy, possibly as
a result of difficult or pathological bereavement processes.”).
188
Elka Serrano & Julia “Jill” K. Warnock, Depressive Disorders Related to Female Reproductive
Transitions, 20 J.
PHARMACY PRACTICE 385, 385 (2007).
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26
condition[s]” that are “related” to pregnancy.”
189
However, a review of the
cases involving the mental health issues due to miscarriage and pregnancy
show that plaintiffs may face challenges both establishing that they were
suffering from a medical condition related to pregnancy and identifying
appropriate comparators.
In Hollstein v. Caleel & Hayden, LLC, the plaintiff, Hollstein, lost
her job as an inside sales person for a cosmetics company after she requested
to delay her travel after returning from maternity leave.
190
Hollstein had
worked at the company for five years in the customer service department,
and then accepted a promotion to the inside sales team.
191
She was able to
take maternity leave for ninety days, and was granted a one month extension
because of “anxiety complications in her pregnancy.”
192
When she returned
to work, Hollstein discovered that travel requirements for her position had
increased from one week a quarter to one week a month.
193
She requested to
defer her first travel assignment for two months, but was told that the
scheduled travel was mandatory to keep her position.
194
Hollstein claimed in
her lawsuit that she requested to delay travel because she was suffering from
postpartum depression, but she had not submitted supporting medical
documentation to her employer outside of the doctor’s letter she had
previously used to extend her leave a month.
195
Her email to her employer
did not specifically refer to postpartum depression, but stated “she was not
mentally ready to leave her son for a week.”
196
The court found that although
“the PDA prohibits employers from discriminating against employees on the
basis of conditions related to pregnancy that occur after the actual
pregnancy. . . . there [was]s no evidence that Plaintiff was suffering any
medical conditions related to her pregnancy” when she lost the inside sales
position.
197
Relying on the explanation given by Hollstein in the email to her
employer, the court determined that she was not suffering from a medical
condition but just the “desire to avoid leaving her infant son.”
198
In Reilly v. Revlon, Inc., the court found that the plaintiff did not
show a relation between her pregnancy and her termination, but
acknowledged that “Postpartum depression is a condition related to
pregnancy and accordingly falls within the PDA’s protections.”
199
The court
189
See 42 U.S. Code § 2000e(k).
190
No. 11-CV-00605, 2012 WL 4050302, at *4 (D. Colo. Sept. 14, 2012).
191
Id. at *1.
192
Id.
193
Id.
194
Id.
195
Id.
196
Id.
197
Id. at *3.
198
Id. at *4.
199
620 F. Supp. 2d 524, 544 (S.D.N.Y. 2009). It seems that many cases where
plaintiffs are seeking reparations for being terminated due to postpartum
depression are brought under the ADA. However, courts are divided on whether
postpartum depression is considered a disability under the ADA. See discussion
infra Part II.C.3.
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27
held that because “the PDA only requires that women affected by pregnancy
or related medical conditions be treated the same as other persons not so
affected but similar in their ability or inability to work[,]” Reilly needed to
demonstrate “that she was treated differently from male or non-pregnant
female employees who suffered from depression unrelated to pregnancy for
extended periods.”
200
In this pre-Young decision, the court limited
comparators to other depressed and non-pregnant employees, seeming to
argue that only the narrow category of other depressed persons could be
considered similar to Reilly in their ability or inability to work.
201
It seems that plaintiffs may occasionally get past summary
judgement if they have very strong direct evidence of discrimination, but this
is not common. In Nayak v. St. Vincent Hospital & Health Care Center, Inc.,
the plaintiff was able to defeat her employer’s motion for summary judgment
when she had direct evidence that her termination was related to her
complicated pregnancy and struggle with postpartum depression.
202
Nayak
became pregnant with twins during the second year of her residency in the
OB/GYN program at St. Vincent Hospital.
203
She experienced medical
complications during her pregnancy and had to take medical leave to go on
bed rest.
204
While out on leave, she lost one of the twins and had to spend
the final period of her pregnancy in the hospital.
205
Following giving birth,
she struggled with both postpartum depression and severe pelvic pain.
206
After returning to work, Nayak was told others in the program had raised
“concerns” including that “she appeared distracted, sad, and tearful.”
207
She
was placed on probation the following week and following her probationary
period, her residency was not renewed for the following year.
208
The court
denied St. Vincent’s motion for summary judgment, noting direct, written
evidence of discrimination as Nayak’s supervisor’s “letter to the American
Board of Obstetrics and Gynecology . . . specifically stated that St. Vincent
did not renew Plaintiff's contract ‘[d]ue to a medically complicated
pregnancy. . . .’”
209
c. The PDA and Fertility Treatment
Approximately 12% of all women require some level of fertility
assistance during their lifetime and the use of fertility treatments has been
200
Id. at 545.
201
Reilly was able to defeat summary judgment under the ADA in the same case, which is
discussed infra, Part II.C.3.
202
No. 12-CV-00817, 2014 WL 2179277, at *12 (S.D. Ind. May 22, 2014).
203
Id. at *5.
204
Id.
205
Id.
206
Id. at *6.
207
Id. at *7.
208
Id.
209
Id. at *11.
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28
growing for several years.
210
The risk of infertility increases with age;
approximately one third of women over thirty-five will have difficulty
conceiving naturally.
211
Fertility counseling and possible subsequent
fertility treatment is recommended for women “not . . . able to achieve
pregnancy after 1 year of having regular, unprotected intercourse, or after 6
months if the woman is older than thirty-five years of age.”
212
Doctors today
use a variety of fertility treatments, ranging from one time use medications
to surgical procedures, with an overall success rate of 50%.
213
Women under
age thirty-five are most likely to use medication based fertility treatments,
while women over forty are most likely to need surgical treatments,
214
such
as in vitro fertilization (IVF).
215
Fertility treatment is expensive. The cost of IVF ranges from
approximately $12,000 to $17,000 without necessary medications
216
and
$25,000 with them.
217
Most couples require multiple cycles to achieve a
successful pregnancy and birth.
218
Other fertility treatments cost less but
still involve significant expense. For example, one study of 332 couples
undergoing fertility treatment across eight private and public fertility clinics
found the median out-of-pocket expenses for medication-only infertility
treatments to be $912 and $2,623 for intrauterine insemination.
219
According to a survey by the Society for Human Resources Management, a
210
Holly Vo et al., Health Behaviors Among Women Using Fertility Treatment, 20 MATERNAL &
CHILD HEALTH J. 2328, 2329 (2016).
211
Sarah Kroeger & Giulia La Mattina, Assisted Reproductive Technology and Women’s Choice
to Pursue Professional Careers, 30 J.
POPULATION ECON. 723, 725 (2017); cf. 2019 ART Success Rates,
C
ENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/art/artdata/index.html (last
visited Feb. 14, 2022) (noting that of 330,773 assisted reproductive technology (ART) cycles, 77,998
resulted in live births, a success rate of 24%).
212
Infertility & Fertility, Eunice Kennedy Shriver, NATL INST. CHILD HEALTH & HUM. DEV. (Jan.
31, 2017), https://www.nichd.nih.gov/health/topics/infertility.
213
Fertility Treatments for Females, Eunice Kennedy Shriver, NATL INST. CHILD HEALTH &
HUM. DEV. (Jan. 31, 2017),
https://www.nichd.nih.gov/health/topics/infertility/conditioninfo/treatments/treatments-women.
214
Kroeger & La Mattina, supra note 211, at 726.
215
In vitro Fertilization (“IVF”) “is the process of fertilization by extracting eggs, retrieving a
sperm sample, and then manually combining an egg and sperm in a laboratory dish. The embryo(s)
is then transferred to the uterus.” IVF – In vitro Fertilization, A
M. PREGNANCY ASSN (Apr. 24, 2019),
https://americanpregnancy.org/getting-pregnant/infertility/in-vitro-fertilization-70966/. IVF
treatment is complicated and often “involv[es] short-notice doctor appointments early in the
morning, physically invasive procedures that can require sedation, endless blood draws, regular self-
injections of intense hormones, and the emotional roller coaster of waiting to find out if a procedure
was successful.” Katherine Goldstein, “My Boss Said, ‘I Understand What You’re Going Through,
but You Have a Job to Do’”, S
LATE (Jan. 30, 2019, 9:00 AM), https://slate.com/human-
interest/2019/01/infertility-workplace-pregnancy-challenges-2019.html.
216
State Laws Related to Insurance Coverage for Infertility Treatment, NATL CONF. OF STATE
LEGIS., (Mar. 12, 2021), https://www.ncsl.org/research/health/insurance-coverage-for-infertility-
laws.aspx. In IVF, drugs are used to stimulate egg production before retrieval.
217
IVF – In Vitro Fertilization, Costs of IVF, FERTILITY IQ, https://www.fertilityiq.com/ivf-in-
vitro-fertilization/costs-of-ivf#is-ivf-good-value (last visited Feb. 2, 2022).
218
Kroeger & La Mattina, supra note 211, at 726 (“[I]t often takes multiple cycles to achieve a
pregnancy. . . .”).
219
See Alex K. Wu et al., Out-of-Pocket Fertility Patient Expense: Data from a Multicenter
Prospective Infertility Cohort, 191 J.
UROLOGY 427, 429 t.2 (2014). This was measured over an
eighteen month period. Id. at 428.
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29
major association of private-sector human resources management
professionals, only about twenty to twenty-five percent of employers in the
United States offer health insurance plans that cover fertility treatment.
220
The exceptions are employers in the high-tech sector
221
and large
employers,
222
which tend to be more generous with fertility benefits. In 2020,
just 14% of employers with 50 to 499 employees offer insurance benefits
covering IVF.
223
Currently, nineteen states mandate, by statute, some form
of insurance coverage for an infertility diagnosis and its treatment, although
the type of coverage varies widely,
224
from low-cost, low-yield treatments
such as medical advice and medications, to high-cost, higher yield treatment
like IVF.
225
Studies of assisted reproductive technology availability find that
individuals who access these services tend to be white, highly-educated, and
wealthy.
226
The two federal appellate circuits to have addressed the question, the
Second and Eight Circuits, have held that the exclusion of infertility
treatment from health insurance plans does not fall within the scope of the
PDA, because infertility is a gender neutral condition that applies to both
220
See SOCY HUM. RES. MGMT., 2019 EMPLOYEE BENEFITS: HEALTHCARE & HEALTH SERVICES
6, 9 (2019), https://www.shrm.org/hr-today/trends-and-forecasting/research-and-
surveys/pages/benefits19.aspx (choose “Healthcare and Health Services”) [hereinafter SHRM
2019
SURVEY] (reporting, based on a survey of 2,763 Society of Human Resources Management members
(i.e., employers), that while 26% of employer health insurance plans included non-IVF infertility
treatment and 24% included IVF treatment in 2017, these numbers have declined to 19% covering
non-IVF infertility treatment and 18% covering IVF treatment in 2019).
221
See Ann Carrns, Tech Companies Get High Marks for Covering Infertility Treatments, NY
TIMES, Nov. 15, 2017, https://www.nytimes.com/2017/11/15/your-money/infertility-treatment-
coverage.html (reporting that Big tech companies such as Facebook, Google, and Microsoft have been
leaders in offering fertility benefits in order to attract and retain workers).
222
See 2021 FertilityIQ Workplace Index, FERTILITYIQ,
https://www.fertilityiq.com/topics/fertilityiq-data-and-notes/fertilityiq-workplace-index (last visited
Feb. 6, 2022)
(reporting that large employers in the industrial and retail sectors such as BP,
Starbucks, and Dressbarn have been catching up with employer in the high-tech sector); M
ERCER,
2021 SURVEY ON FERTILITY BENEFITS 5 (2021), https://resolve.org/wp-content/uploads/2021/05/2021-
Fertility-Survey-Report-Final.pdf (reporting, based on a survey of 459 employers, that 27% of
surveyed employers with more than 500 employees and 42% of employers with more than 20,000
employees covered IVF fertility treatment in 2020).
223
See MERCER, supra note 222, at 5; see also Carrns, supra note 221 (“A relatively small
number of companies offer generous benefits for infertility treatment to employees, while most have
minimal or no coverage.”).
224
See Infertility Coverage by State, RESOLVE (Apr. 2021), https://resolve.org/what-are-my-
options/insurance-coverage/infertility-coverage-state/; State Laws Related to Insurance Coverage for
Infertility Treatment, N
ATL CONF. OF STATE LEGIS. (Mar. 12, 2021),
https://www.ncsl.org/research/health/insurance-coverage-for-infertility-laws.aspx.
225
Id.
226
Ahmad O. Hammoud et al., In Vitro Fertilization Availability and Utilization in the United
States: A Study of Demographic, Social, and Economic Factors, 91 F
ERTILITY & STERILITY 1630, 1634
(2009); Tarun Jain & Mark D. Hornstein, Disparities in Access to Infertility Services in a State with
Mandated Insurance Coverage, 84 F
ERTILITY & STERILITY 221, 222 (2005); Molly Quinn & Victor
Fujimoto, Racial and Ethnic Disparities in Assisted Reproductive Technology Access and Outcomes,
105 F
ERTILITY & STERILITY 1119, 1120–21 (2016); J. Farley Ordovensky Staniec & Natalie J. Webb,
Utilization of Interfertility Services: How Much Does Money Matter?, 42 H
EALTH SERVS. RSCH. 971,
985–86 (2007).
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30
men and women.
227
Therefore, many women who experience infertility are
not able to receive the employer-sponsored health coverage they need to
address this common health condition. The hurdles do not end with cost,
however. Even those employees lucky enough to be in a position afford cost
of treatment out-of-pocket or who have health insurance coverage may face
discriminatory challenges in the workplace as a result of their treatment,
mainly due to their need for time off from work to undergo treatment and
oftentimes simply due to stereotyping about employees who are seeking
pregnancy.
The majority of women undergoing IVF require time off work; the
most common reason is for medical appointments, followed by physical and
emotional difficulties.
228
One study found the average time off needed for
IVF treatment to be twenty-three hours.
229
Although one day may not seem
like a significant period of time, many workers, especially low-wage,
contingent workers, have no sick leave.
230
For these workers, one missed day
can mean losing one’s job.
231
Even many professional workers are subject to
probationary periods, during which a perfect job attendance is expected.
232
Women who experience physical and emotional difficulties during treatment
need more time off from work.
233
In addition to the physical limitations
associated with some fertility treatments, women experiencing infertility are
227
Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 680 (8th Cir. 1996), abrogated on other
grounds by Bragdon v. Abbott, 524 U.S. 624 (1998) (“[B]ecause the policy of denying insurance
benefits for treatment of fertility problems applies to both female and male workers and thus is
gender-neutral,” it does not violate Title VII); Saks v. Franklin Covey Co., 316 F.3d 337, 345–46 (2d
Cir. 2003) (“[R]eproductive capacity is common to both men and women,” but “for a condition to fall
within the PDA’s inclusion of ‘pregnancy . . . and related medical conditions’ as sex-based
characteristics, that condition must be unique to women.”).
228
Clazien A. M. Bouwmans et al., Absence from Work and Emotional Stress in Women
Undergoing IVF or ICSI: An Analysis Of IVFRelated Absence from Work in Women and the
Contribution of General and Emotional Factors, 87 A
CTA OBSTETRICIA ET GYNECOLOGICA
SCANDINAVICA 1169, 1171 (2008).
229
Id.
230
While overall, 78% of civilian workers had access to paid sick leave in 2020, the numbers are
much worse for low wage earners. U.S.
DEPT OF LAB., NATIONAL COMPENSATION SURVEY: EMPLOYEE
BENEFITS IN THE UNITED STATES, MARCH 2020, at 119 (2020),
https://www.bls.gov/ncs/ebs/benefits/2020/employee-benefits-in-the-united-states-march-2020.pdf.
For those in the lowest 25% of wage earners, only 52% of employees had paid sick leave. Id. Of those
being paid the least, the lowest 10% of wage earners, only 33% had access to paid sick leave. Id.
231
Garcia v. Colvin, 741 F.3d 758, 762 (7th Cir. 2013) (citing “vocational expert’s testimony that
missing even one day a month could get a full-time employee fired” in analysis of disability
applicant’s ability to work).
232
Employers’ use of probationary periods is on the decline, but this is because employers can
fire at-will employees regardless. Indeed, most human resource firms now recommend that
employers do not use probationary periods because they already can terminate employees for any
reason under general at-will hiring. See, e.g., Stephanie Overman, Are Probationary Periods Passé?,
SHRM (Jan. 23, 2019), https://www.shrm.org/resourcesandtools/hr-topics/talent-
acquisition/pages/are-probationary-periods-pass%C3%A9.aspx (stating that probationary periods
may be harmful to companies by giving employees the impression that they are in a quasi-
contractual relationship after the period ends); Claudia St. John, Time to Ditch the Probationary
Period, A
FFINITY HR GRP. (Sept. 13, 2019), https://affinityhrgroup.com/time-to-ditch-the-
probationary-period/ (same).
233
Bouwmans et al., supra note 228, at 1172 (finding that absence from work nearly doubled
for those experiencing emotional or physical problems as a result of IVF).
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at a high risk of “social, marital, and personal distress.”
234
Emotional
difficulties can continue after the treatment itself is over, with one study
finding that over twenty percent of women continued to experience anxiety
and depression six months after completing an unsuccessful IVF
treatment.
235
Courts have generally held that although infertility on its own is not
protected by the PDA, women experiencing discrimination based on
undergoing IVF treatment may fall within the scope of the PDA because only
women undergo IVF treatments.
236
These decisions are promising, in theory,
but they are of cold comfort to most women undergoing IVF treatment, as
there is no duty to accommodate women who need time off from work to
undergo IVF. That is, when encountering discrimination due to fertility
treatment, the employees that are most likely to prevail are those who do
not need any time off from work but who experience with direct evidence of
discrimination due to the mere fact that they are trying to become pregnant.
In LaPorta v. Wal-Mart Stores, Inc.,
237
the plaintiff claimed she was
discriminated against in violation of the PDA because she was terminated
based on absences related to undergoing IVF fertility treatment.
238
The court
granted the defendant summary judgment, stating that “the only rational
construction of the statute is the one adopted by the Eighth Circuit in Krauel
. . . that infertility is not a medical condition related to pregnancy or
childbirth within the meaning of the PDA.”
239
The lack of a right to accommodation to undergo fertility treatment,
particularly IVF which has greater physical and emotional costs than other
types of treatment, is particularly troubling, given that most women who
request time off of work to undergo fertility treatment are not commonly
accommodated. As explained by one expert:
Employers often refuse to accommodate infertile women who
request time off to undergo fertility treatments, forcing them to
choose between family and work. Employers have even terminated
infertile women because of their potential to strain company
resources over a prolonged period of time. In addition, employer-
234
W.D. Winkelman et al., The Psychosocial Impact of Infertility Among Women Seeking
Fertility Treatment, 104 F
ERTILITY & STERILITY 359, 360 (2015). Women experience more infertility
related stress than men. B.D. Peterson et al., Gender Differences in How Men and Women Who Are
Referred for IVF Cope with Infertility Stress, 21 H
UM. REPRODUCTION 2443, 2448 (2006). Women
who undergo infertility treatment multiple times also experience decreasing resilience to stress and
anxiety. Kathy Turner et al., Stress and Anxiety Scores in First and Repeat IVF Cycles: A Pilot Study,
8 PLOS ONE 1, 4 (2013).
235
C.M. Verhaak et al., A Longitudinal, Prospective Study on Emotional Adjustment Before,
During and After Consecutive Fertility Treatment Cycles, 20 H
UM. REPRODUCTION 2253, 2253 (2005).
236
See, e.g., Hall v. Nalco, 534 F.3d 644, 649 (7th Cir. 2008); Ingarra v. Ross Educ., LLC, No.
13-CV-10882, 2014 WL 688185, at *4 (E.D. Mich. Feb. 21, 2014); Govori v. Goat Fifty, LLC, No. 10
CIV. 8982, 2011 WL 1197942, at *3 (S.D.N.Y. Mar. 30, 2011).
237
LaPorta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 771 (W.D. Mich. 2001).
238
Id. at 763. The court was troubled that including protection for infertile women under the
PDA would cause difficulty in determining “whether the plaintiff was replaced by an individual
outside the protected class,” as it would suggest “that replacement of an infertile plaintiff with a
fertile woman or (even a pregnant woman) violates the act[.]” Id. at 770–71.
239
Id. at 771.
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funded health plans rarely provide coverage for fertility treatments,
leaving infertile working women at a disadvantage compared to
their pregnant counterparts.
240
d. Summary: The PDA and “Unequal” Accommodation
The cases discussed in this Section are really just the tip of the
iceberg. Whether one views them as a glass half full or a glass half empty,
they likely suggest an overly rosy view of Young’s impact. Pregnant workers
must go through enormous effort, both within their workplaces and
sometimes with the help of lawyers, just to prove that they are not being
treated the same as others similar in their ability or inability to work.
If a pregnant employee needs to temporarily switch to a job where
they are not standing on their feet all day to avoid a higher risk of
miscarriage, for example, or if an employee who suffers a pregnancy-related
medical complication suffers a miscarriage requiring time to recover, they
must not only have a difficult conversation with their manager, but they may
need (if their request is denied), to somehow discover what other workers
who are “similar in their ability or inability to work” are receiving in terms
of job adjustments. This information is often impossible to gather without
filing a lawsuit, which could take years to resolve and most certainly will not
be concluded before the pregnancy or its medical consequences.
Moreover, for employees who have experienced a miscarriage, the
cost/benefit calculus of making these requests (with or without the help of a
lawyer) is even more dismal. If the pregnancy was intended, the employee
risks sharing their intentions of becoming a parent with the employer—and
potential retaliation—without any immediate benefit of a successful
pregnancy and birth.
And even though PDA pregnant employees “half won” in Young v.
UPS, receiving the opportunity to obtain equal treatment so long as they can
access class-wide comparative evidence showing that all they are seeking is
the same benefits as their non-pregnant coworkers, the decision has
continued to confuse lower federal courts. What constitutes “similar”
remains unanswered by the Young decision. In this vacuum, pregnancy
discrimination is still very commonplace. In an extensive review of post-
Young pregnancy accommodation cases, the national nonprofit, A Better
Balance, found that in more than two-thirds of cases, despite the new Young
standard, courts held employers were permitted to deny pregnant workers
accommodations under the PDA.
241
240
Jeanne Hayes, Female Infertility in the Workplace: Understanding the Scope of the Pregnancy
Discrimination Act, 42 C
ONN. L. REV. 1299 (2010). This article was written before the seminal
Supreme Court decision in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015), which
significantly altered plaintiff proof structure under the PDA, so its recommendations may not be
feasible under current jurisprudence. See discussion supra Part II.A.2.
241
See DINA BAKST, ELIZABETH GEDMARK & SARAH BRAFMAN, LONG OVERDUE: IT IS TIME FOR
THE
FEDERAL PREGNANT WORKERS FAIRNESS ACT 5 (2019), https://www.abetterbalance.org/wp-
content/uploads/2019/05/Long-Overdue.pdf.
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33
B. The Family and Medical Leave Act
Congress passed the FMLA in 1993 in order to guarantee employees
unpaid but job-protected leave for certain family and medical leave reasons,
including pregnancy, personal or family illness, adoption, and others.
242
Employers with more than fifty employees are bound by the Act.
243
The Act
provides a baseline of twelve weeks of unpaid leave for qualified reasons per
employee per twelve-month period.
244
The FMLA does not provide
bereavement leave.
245
1. The Serious Health Condition Requirement
In order to obtain FMLA leave, an employee must have a “serious
health condition.”
246
A serious health condition is defined by the statute and
relevant Department of Labor (DOL) regulations as an illness, injury, or
impairment that requires inpatient care
247
or continuing treatment by a
healthcare provider.
248
“Any period of incapacity due to pregnancy, or for
prenatal care”
249
also constitutes a serious health condition. A DOL
regulation on “Leave for pregnancy or birth” sets the rules for FMLA leave
for pregnancy or birth of a child. Section a(4) clarifies that:
The mother is entitled to FMLA leave for incapacity due to
pregnancy, for prenatal care, or for her own serious health condition
following the birth of the child. Circumstances may require that
FMLA leave begin before the actual date of birth of a child. An
expectant mother may take FMLA leave before the birth of the child
for prenatal care or if her condition makes her unable to work. The
mother is entitled to leave for incapacity due to pregnancy even
though she does not receive treatment from a health care provider
during the absence, and even if the absence does not last for more
than three consecutive calendar days. For example, a pregnant
242
29 U.S.C. § 1212(a)(1) (2021).
243
29 U.S.C. § 1211(4)(A)(i) (2021).
244
29 U.S.C. § 1211(2)(A)(i)-(ii) (2021).
245
Sarah Grace-Farley-Kluger Act, S. 528, 115th Cong. (2017).
246
29 U.S.C. § 2612(a)(1)(D) (2021).
247
29 C.F.R. § 825.114. Inpatient care means an overnight stay in a hospital, hospice, or
residential medical care facility, including any period of incapacity, i.e., inability to work, attend
school or perform other regular daily activities due to the serious health condition, or any subsequent
treatment in connection with such inpatient care. Id.
248
29 U.S.C. § 2611(11) (2018). The relevant Department of Labor regulation defines continuing
treatment in several ways, including a period of incapacity for more than three consecutive days that
requires ongoing treatment by a health care provider, 29 C.F.R. § 825.115(a), or continuing
treatment by a health care provider for a chronic health condition. 29 C.F.R. § 825.115(c). Ongoing
treatment is defined in the regulation as “(1) Treatment two or more times, within 30 days of the
first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse
under direct supervision of a health care provider, or by a provider of health care services (e.g.,
physical therapist) under orders of, or on referral by, a health care provider; or (2) Treatment by a
health care provider on at least one occasion, which results in a regimen of continuing treatment
under the supervision of the health care provider.” 29 C.F.R. § 825.115 (a)(1)–(2).
249
29 C.F.R. § 825.115 (b).
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employee may be unable to report to work because of severe
morning sickness.
250
Section a(5) extends this entitlement to the spouse of a pregnant woman
needing care.
251
The legislative history of the FMLA shows that Congress intended
leave be available to women who experience miscarriages. Both the House
and Senate reports that accompanied the FLMA specifically referred to
miscarriages as an example of “serious health conditions” the legislation is
intended to cover.
252
Additionally, several organizations provided written
statements in congressional hearings leading up to the FMLA referencing
the need to protect women either at risk of or experiencing miscarriages.
253
Likely due to the strong statutory language encompassing pregnancy
and prenatal care as a serious health condition, there are few reported
decisions where a plaintiff could not request FMLA leave for a miscarriage
or threatened miscarriage because a court did not consider a miscarriage a
“serious health condition” under these factors. That is, employees who suffer
a miscarriage or who are ordered on bedrest due to a threatened miscarriage
seem to qualify for FMLA leave without issue. Cases primarily revolve
around issues that arise after FMLA leave has been granted, such as
retaliation
254
or the need for additional time off.
255
For example, in Lopez v. Lopez v. City of Gaithersburg,
256
Jammie
Lopez, a police officer, was diagnosed with gestational diabetes and ordered
on bedrest due to her high-risk pregnancy and threat of a miscarriage.
257
The
police department had a policy of permitting employees to use paid sick
before the commencement of FMLA leave (i.e., to use paid sick leave and
250
29 C.F.R. § 825.120(a)(4).
251
29 C.F.R. § 825.120(a)(4). This regulation was amended in 2015 to change the previous
language, which referred to “husband and wife” and “mother and father,” to “spouses” and “parents,”
in or to clarify that equal benefits would be available for same sex couples. See Definition of Spouse
Under the Family and Medical Leave Act, 80 Fed. Reg. 9,989-01 (Feb. 25, 2015) (codified at 29 C.F.R.
§ 825.120).
252
S. REP. NO. 103-3, at 29 (1993); H.R. REP. NO. 103-8, pt. 1, at 40 (1993).
253
See, e.g., Hearing on H.R. 770, the Family and Medical Leave Act of 1989: Hearing before the
Subcomm. on Labor-Management Relations of the Comm. on Education and Labor, 101st Cong. 244
(1989) (report by ABA) (discussing the need for job protection when “a woman must take leave
because of temporary disability caused by miscarriage”); Family and Medical Leave Act of 1987:
Joint Hearing before the H. Post Office and Civil Service Comm., Subcomm. on Civil Service and
Compensation and Employee Benefits, 100th Cong. 40 (1987) (testimony on behalf of women’s and
civil rights groups and unions) (discussing women’s risk of job loss when experiencing temporary
disability related to “threatened miscarriage”); Family and Medical Leave Act of 1989: Hearing before
the Subcomm. on Children, Family, Drugs & Alcoholism of the Comm. on Labor & Human Resources,
101st Cong. 102 (1989) (statement by Dana Friedman) (discussing how flexible benefit plans would
not protect a woman who had a miscarriage).
254
Under the FMLA, it is unlawful for an employer “to discharge or in any other manner
discriminate against any individual” for requesting or taking a family leave, or for “opposing any
practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2).
255
Grant v. Hosp. Auth. of Miller Cty., No. 15-CV-201, 2017 WL 3527703, at *3 (M.D. Ga. Aug.
16, 2017);Wanamaker v. Town of Westport Bd. of Educ., 11 F. Supp. 3d 51, 59 (D. Conn. 2014 ); Jones
v. Elmwood Centers Inc., No. 12 CV 3046, 2014 WL 1761567, at *2 (N.D. Ohio Apr. 30, 2014).
256
No. CV 15-1073, 2016 WL 4124215, at *11–15 (D. Md. Aug. 3, 2016).
257
Id. at *1–2
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FMLA consecutively rather than concurrently).
258
After Lopez combined her
sick leave days and FMLA leave to cover the period of bedrest and recovery
after the birth of her child and informed the department that she would need
a light-duty assignment for one month due to heavy bleeding upon her return
to work,
259
the department retroactively designated her period of paid sick
leave as FMLA parental leave, leaving her one-week short of the medically
necessary leave recommended by her physician.
260
The police department
then terminated her for not returning to work a week earlier than she was
able to.
261
Lopez prevailed on the department’s summary judgement motion
to dismiss her FMLA retaliation claim, mainly because she had evidence
that the department violated its own policy.
262
Others are not so lucky.
For example, in Daneshpajouh v. Sage Dental Group of Florida,
PLLC,
263
the court ruled that the plaintiff, who claimed that she was
terminated for inquiring about FMLA rights while on bedrest from an
emergency surgery to save her pregnancy, did not prove retaliation; the close
timing between her requesting FMLA leave and termination, alone ,was not
enough to prove causation.
264
2. Partner FMLA Miscarriage Claims
In the last twenty years, there has been increasing research showing
that a miscarriage impacts both partners in a relationship. Non-pregnant
partners experience grief following their partners’ miscarriages that is
complicated by their need to be a source of strength and support.
265
Research
has shown that men can struggle to cope with grief that is commonly not
acknowledged by society and also their identity as fathers.
266
Men also have
been documented to have less coping skills for grief.
267
Studies show that
partners commonly experience depressive systems in the year following a
miscarriage, including “feelings of sadness, loss, and helplessness,” with the
worst symptoms occurring soon after the loss.
268
Couples that have a
miscarriage also have an increased risk of a relationship breakdown and
separation or divorce.
269
The regulations implementing the FMLA state that “[a] spouse is
entitled to FMLA leave if needed to care for a pregnant spouse who is
258
Id. at *8.
259
Id. at *3.
260
Id. at *8.
261
Id. at *5.
262
Id. at *11–12.
263
No. 19-CIV-62700, 2021 WL 3674655, at *18 (S.D. Fla. Aug. 18, 2021).
264
Id. at *18.
265
Bernadette Susan McCreight, A Grief Ignored: Narratives of Pregnancy Loss from a Male
Perspective, 26 S
OCIOLOGY OF HEALTH & ILLNESS 326, 337 (2004).
266
Id. at 346–47.
267
Id. at 329.
268
Ingrid H. Lok & Richard Neugebauer, Psychological Morbidity Following Miscarriages, 21
B
EST PRACTICE & RESEARCH CLINICAL OBSTETRICS & GYNAECOLOGY 229, 239–40 (2007).
269
Katherine J. Gold et al., Miscarriage and Cohabitation Outcomes after Pregnancy Loss, 125
P
EDIATRICS 1202, 1205–06 (2010).
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36
incapacitated or if needed to care for her during her prenatal care, or if
needed to care for her following the birth of a child if she has a serious health
condition.”
270
In Jadali v. Michigan Neurology Associates, P.C., the Michigan Court
of Appeals considered whether an employer could deduct money for an
employee’s “lost productivity during his medical absences.”
271
The employee
had taken thirteen or fourteen days off following his wife’s miscarriage.
272
The defendant conceded the validity of taking such time off under the FMLA,
and the court also acknowledged that the plaintiff had taken time off to care
for a spouse with a “serious health condition.”
273
The court held that a jury
could determine that a financial penalty for taking leave was interference
prohibited by the FMLA. The Department of Labor, in educational materials
about the FMLA, concurs: “A father can use FMLA leave for the birth of a
child and to care for his spouse who is incapacitated (due to pregnancy or
child birth).”
274
Indeed it seems that courts look quite favorably upon fathers
are discriminated against because they take family leave to care for a
partner after the birth of a child,
275
so long as the father is actually providing
care.
276
Although the FMLA successfully protects new fathers, the law is
limited because it offers no bereavement leave. The Chicago Tribune ran a
story in 2015 about a family who had struggled to obtain FMLA leave after
a stillborn birth at twenty-two weeks.
277
The family advocated for a measure
270
29 C.F.R. § 825.120(5).
271
2011 WL 6848356, at *11 (Ct. App. Mich. Dec. 29, 2011).
272
Id. at *4.
273
Id. at *11.
274
See Frequently Asked Questions and Answers About the Revisions to the Family and Medical
Leave Act, U.S.
DEPT OF LAB., https://www.dol.gov/whd/fmla/finalrule/NonMilitaryFAQs.htm (last
visited Jan. 13, 2022).
275
For example, in Meyer v. Town of Wake Forest, the court held that a jury could reasonably
find a new father used FMLA leave time to care for his wife and baby on trips to the beach and fair.
No. 16-CV-348, 2018 WL 4689447, at *6 (E.D.N.C. Sept. 28, 2018). Meyer planned with his employer
to use intermittent FMLA leave to care for his wife and newborn child in the months following her
birth by caesarian section. Id. at *6. According to company policies, Meyer first had to exhaust his
sick time before moving to FMLA leave. Id. at *2. Meyer requested time off to care for his wife and
newborn baby on trips to the beach and fair and classified it as sick leave. Id. at *3. He was
terminated for purposefully misusing sick leave. Id. at *4. Meyer’s employer argued that going to
the beach and the fair with his family could not fall within the partner provisions of the FMLA, but
the court disagreed: “In essence, defendants argue there is a geographical limitation to the activities
covered by the FMLA, particularly regarding care provided to a spouse who has a serious health
condition. The court finds no such limitation in the text of applicable regulations nor in binding
precedent.” Id. at *7–8. Cf. also Blohm v. Dillard’s Inc., 95 F. Supp. 2d 473, 480 (E.D.N.C. 2000)
(holding that father who verbally informed his supervisor of his intent to take FMLA leave a month
before his child’s birth, and was then demoted and ultimately terminated for missing work for the
birth of his child, raised a genuine issue of material fact sustaining his claims of FMLA interference
and retaliation).
276
See Tellis v. Alaska Airlines, 414 F.3d 1045, 1046–47 (9th Cir. 2005) (holding that using
FMLA leave for a cross-country trip to retrieve a family car, away from spouse with a serious health
condition, was an abuse of FMLA leave).
277
See Becky Yerak, The Push for Unpaid, Job-protected Bereavement Leave After Losing a
Child, C
HICAGO TRIBUNE (July 2, 2016) http://www.chicagotribune.com/business/ct-parental-
bereavement-act-0705-biz-20150702-story.html.
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to amend the FMLA to include a provision providing twelve weeks of leave
to parents after the death of a child. As it currently stands, the FMLA does
not provide bereavement leave. Taking up the cause, beginning in 2017,
Representative Paul Gosar (AZ-R) and Senator Jon Tester (MT-D)
introduced congressional bills adding bereavement leave to the FMLA.
278
The bills stalled due to congressional gridlock, and the similar bills have
been introduced each year since then,
279
though none have passed. However,
progress has been made for federal employees, who gained two weeks of
parental bereavement as part of the National Defense Authorization Act for
Fiscal Year 2022,
280
though a reduced amount from the original bill language
that permitted twelve weeks of paid leave.
281
A recent case shows that the lack of FMLA coverage following the
death of a newborn baby continues to be a problem for employees. In Towns
v. Kipp Metro Atlanta Collaborative, Inc., the court awarded summary
judgment for the employer, finding that the plaintiff could not make a prima
facie case of FMLA interference when he was terminated after requesting
FMLA leave for the birth of his child that passed away shortly after birth.
282
The court found that the father was not entitled to FMLA leave to care for a
newborn child since the child had died and bereavement leave is not covered
by the FMLA.
283
The court also rejected the plaintiff’s claim that he suffered
from a serious condition following the death of his baby, stating that “he
never allege[d] that he suffered from any particular physical or mental
condition, such as depression or anxiety.”
284
The court determined that even
if plaintiff was incapacitated following his baby’s death, he did not seek the
required subsequent treatment from a “health care provider.”
285
The court
rejected plaintiff’s arguments that he sought help from “spiritual guidance
counselors” and that he did not seek medical treatment because his
employment had been terminated and he thought he no longer had
insurance.
286
This case shows the difficulty that partners and also women
may face to qualify for FMLA leave based on mental health conditions
associated with childbirth under the current regulations.
278
See Sarah Grace-Farley-Kluger Act, S. 528, 115th Cong. (2017); Sarah Grace-Farley-Kluger
Act, H.R. 1560, 115th Cong. (2017).
279
Sarah Grace-Farley-Kluger Act, H.R. 5031, 117th Cong. (2021); Sarah Grace-Farley-Kluger
Act, S. 2935, 117th Cong. (2021); Sarah Grace-Farley-Kluger Act, H.R. 983, 116th Cong. (2019);
Sarah Grace-Farley-Kluger Act, S. 559, 116th Cong. (2019).
280
National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, § 6329d, 135
Stat. 1541, 1953 (2021).
281
Jessy Bur, FY22 Defense Bill Gives Feds Parental Bereavement Leave, Makes Changes at The
Pentagon, D
EFENSENEWS (Dec. 15, 2021) (https://www.defensenews.com/federal-
oversight/congress/2021/12/15/fy22-defense-bill-gives-feds-parental-bereavement-leave-makes-
changes-at-the-pentagon/).
282
Towns v. Kipp Metro Atlanta Collaborative, Inc., No. 18-CV-405, 2019
WL 5549279, at *9 (N.D. Ga. July 30, 2019).
283
Id.
284
Id. at *8.
285
Id.
286
Id. at *9.
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3. The FMLA and Post-Miscarriage Depression
The regulations interpreting the FMLA include mental health
conditions as those which can be considered “serious health conditions”
covered by the statute if they involve inpatient care or incapacity followed
by subsequent treatment.
287
In order to qualify for FMLA leave for a mental
health condition, the employee must require “inpatient care” or experience
“[a] period of incapacity of more than three consecutive, full calendar days,
and . . . subsequent treatment or period of incapacity relating to the same
condition, that also involves” either “[t]reatment two or more times, within
30 days of the first day of incapacity” or “[t]reatment by a health care
provider on at least one occasion, which results in a regimen of continuing
treatment under the supervision of the health care provider.”
288
Consequently, the case law provides many examples of plaintiffs who are
able to meet this standard and take FMLA leave for a mental health issue.
289
However, because of the requirement under the FMLA that the health
condition must be “serious,” women who experience mild to moderate
depression after a miscarriage are unlikely to be protected by the FMLA. As
one commentator examining failure of the FMLA to protect domestic
violence victims explains, “[i]t is quite difficult for a psychological or
emotional injury to qualify as a serious health condition under the FMLA.”
290
For example, in a 2007 case from Maine, the court found that an
employee who was chronically late for work because she was “sick and
depressed” did not qualify for intermittent leave under the FMLA.
291
The
employee’s doctor stated the employee suffered from myofascial pain
disorder, which “is associated with profound fatigue, weakness and lethargy,
to a degree that made it medically impossible for her to arrive at work on
time at least for the year prior to her termination.”
292
Nevertheless, the court
refused to treat the lateness as intermittent leave under the FMLA: “to treat
287
See 29 C.F.R. § 825.113. “(a) For purposes of FMLA, serious health condition entitling an
employee to FMLA leave means an illness, injury, impairment or physical or mental condition that
involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as
defined in § 825.115. (b) The term incapacity means inability to work, attend school or perform other
regular daily activities due to the serious health condition, treatment therefore, or recovery
therefrom.”.
288
29 C.F.R. § 825.114; 29 C.F.R. § 825.115(a).
289
See, e.g., Saenz v. Harlingen Med. Ctr, L.P., 613 F.3d 576, 577 (5th Cir. Aug. 2, 2010)
(reversing summary judgment for the employer where the employee provided the employer with
enough information to make clear she was requesting FMLA leave following a severe psychiatric
episode); Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008–09 (7th Cir. 2001) (holding that periodic
episodes of depression, affecting 10-20% of the plaintiff’s working days may be a “serious health
condition” covered by the FMLA); Mileski v. Gulf Health Hosps., Inc., No. CA 14-0514-C, 2016 WL
1295026, at *15 (S.D. Ala. Mar. 31, 2016), judgment entered, No. CA 14-0514-C, 2016 WL 1268261
(S.D. Ala. Mar. 31, 2016) (finding that plaintiff’s depression, PTSD, and ensuing suicide attempts
impeded her major life activities and were therefore covered by the FMLA).
290
Anastasia M. Sotiropoulos, Words Can Cut the Deepest Wounds: Why the Family Medical
Leave Act Should Be Amended to Expand Protection for Victims of Domestic Violence, 65 D
EPAUL L.
REV. 1361, 1362 (2016).
291
Brown v. E. Maine Med. Ctr., 514 F. Supp.2d 104 (D. Me. 2007).
292
Id. at 110.
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chronic lateness, even if caused by a medical condition, as an incapacity, or
inability to perform, that requires intermittent “leave” for the brief duration
of the lateness, distorts the English language and trivializes the purpose of
the Act.”
293
The FMLA definition of “serious health condition” excludes many
mental illnesses by requiring not only incapacity but also treatment; in
contrast, the ADA definition of “disability” does not include a requisite level
of treatment. The FMLA defines a “serious health condition” as “an illness,
injury, impairment, or physical or mental condition that involves: a.
inpatient care in a hospital, hospice, or residential medical care facility; or
continuing treatment by a health care provider,
294
while the ADA defines
“disability” as “a physical or mental impairment that substantially limits
one or more major life activities.”
295
A related problem for those experiencing depression after a
miscarriage is shame. Because both miscarriage and depression are health
conditions that are culturally embedded with shame in our society, the
experience of depression after a miscarriage is like a double whammy of
shame that may deter employees from seeking FMLA leave due to
depression. Without giving proper notice to their employers about the
situation, employees who experience miscarriage are likely to be unprotected
by the FMLA. For example, in Maitland v. Employease, Inc.,
296
the court
awarded the employer summary judgment based on the employee not
adequately informing her employer that she qualified for FMLA leave for a
serious health condition.
297
The employee was diagnosed with depression
and adjustment disorder, but in discussions with her employee did not reveal
these diagnoses, instead stating that “she was ‘psychologically stressed’ and
‘spoke of severe fatigue, inability to-very difficult for me to come to work,
that something was wrong with me. I really didn’t understand. I felt very
sad.’”
298
The court found that although depression can be covered by the
FMLA, the plaintiff’s statements to her employer did not provide sufficient
notice that she had a serious health condition.
299
In Gay v. Gilman Paper
Co., the plaintiff’s FMLA claim similarly failed because the employer was
not given proper notice of the serious medical condition.
300
The plaintiff was
admitted to a psychiatric hospital for a nervous breakdown, but her husband
informed the employer only that “’she was in the hospital’” and “‘having some
tests run.’”
301
The plaintiff’s husband admitted to lying about her condition,
stating that he “‘didn’t want them to know her condition’” and “‘didn’t think
293
Id.
294
29 C.F.R. § 825.113.
295
42 U.S.C. § 12102.
296
Maitland v. Employease, Inc., No. 05-CV-0661, 2006 WL 3090120, at *18 (N.D. Ga. Oct. 13,
2006).
297
Id. at *16.
298
Id.
299
Id.
300
125 F.3d 1432 (11th Cir. 1997).
301
Id. at 1433.
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they needed to know.’”
302
The Eleventh Circuit affirmed the district court’s
grant of summary judgment to the employer, holding that “[w]hen notice of
a possible serious medical condition is deliberately withheld and false
information is given, it cannot be said that an employee has been terminated
in violation of the FMLA.”
303
These cases demonstrates the tension between
an employee’s ability to claim FMLA leave and also maintain privacy.
Finally, the FMLA definition of “serious health condition” excludes
some mental illnesses by requiring not only incapacity but also treatment.
The FMLA defines a “serious health condition” as “an illness, injury,
impairment, or physical or mental condition that involves: a. inpatient care
in a hospital, hospice, or residential medical care facility; or continuing
treatment by a health care provider.
304
Although even mild depression may
have significant impacts on an employees work performance and attendance,
they are less likely to seek regular treatment for mild depression,
305
which
definitionally excludes them from FMLA protection.
Taken as a whole, these cases and statutory rules may explain why
few recent reported cases involving FMLA claims following miscarriage
exist. That is, miscarriage is covered by the FMLA, but the way it is covered
by the FMLA is ineffective. This is because the common subsequent mental
health effects of miscarriage such as mild depression, are not covered or
because employees are unlikely to seek FMLA leave in the first place given
the shame surrounding miscarriage and depression.
C. The Americans with Disabilities Act
Congress passed the ADA in 1990 “to establish a clear and
comprehensive prohibition of discrimination on the basis of disability.”
306
The Act is designed to prevent employment discrimination against
individuals with disabilities.
307
The Act defines disability as either “(A) a
physical or mental impairment that substantially limits one or more of the
major life activities of such individual; (B) a record of such an impairment;
302
Id.
303
Id. at 1436.
304
29 C.F.R. § 825.113.
305
MICHAEL E. THASE & SUSAN S. LANG, BEATING THE BLUES: NEW APPROACHES TO
OVERCOMING DYSTHYMIA AND CHRONIC MILD DEPRESSION 4 (2004) (“Although many people would
recognize a major change in mood, well-being, and sleep or eating patterns (symptoms of major
depression), mild depression creeps in so insidiously that you often don’t notice anything is wrong.”);
id. at 5 (“As for dysthymia, although millions suffer from it, most don’t know it. It is one of the most
underrecognized and undertreated mood disorders.”); Dysthymia, Johns Hopkins Medicine,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/dysthymia (last visited Jan. 22,
2022) (“Often, people with dysthymia grow accustomed to the mild depressive symptoms and do not
seek help.”); Signs and Symptoms of Mild, Moderate, and Severe Depression, Healthline,
https://www.healthline.com/health/depression/milddepression#:~:text=Despite%20the%20challeng
es%20in%20diagnosis,exercising%20daily (last visited Jan. 22, 2022) (“Though mild depression is
noticeable, it’s the most difficult to diagnose. It’s easy to dismiss the symptoms and avoid discussing
them with your doctor.”).
306
Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified at 42
U.S.C. § 12101).
307
Id.
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41
or (C) being regarded as having such an impairment.”
308
The Act requires
employers to not discriminate in hiring and promotional decisions, and to
provide a reasonable accommodation once an employee requests one and
makes a showing of their disability.
309
Despite the ADA’s stated goal of eliminating workplace
discrimination based on disability, the law was largely viewed as “a huge
disappointment, especially in the employment context.”
310
This
disappointment stemmed from federal courts’ narrow interpretation of the
ADA’s definition of “disability.”
311
In Sutton v. United Air Lines, Inc., the
Supreme Court determined that whether or not a person is disabled is to be
determined “with reference to corrective measures,” so that two applicants
for pilot positions denied jobs based on not having uncorrected 20/20 vision
were not disabled under the act since they had 20/20 vision after using
corrective measures.
312
The Court also interpreted the “regarded as”
definition of disability to only apply if the employer regarded the individual
as having an impairment that substantially limits major life activities.
313
The Supreme Court again narrowly interpreted the scope of the ADA in
Toyota Motor Mfg., Kentucky, Inc. v. Williams, stating that the terms
“substantial” and “major life activities” from the ADA’s disability definition
“need to be interpreted strictly to create a demanding standard for qualifying
as disabled.”
314
In response to these Supreme Court’s decisions, Congress passed the
Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) with
the purpose of “restor[ing] the intent and protections of the Americans with
Disabilities Act of 1990.”
315
The ADAAA included the express purpose of
superseding the Supreme Court’s decisions in Sutton and Toyota, which
Congress viewed as narrowing the definition of disability to be less inclusive
than Congress intended.
316
The ADAAA clarified that “the definition of
disability in this Act shall be construed in favor of broad coverage of
individuals under this Act, to the maximum extent permitted by this act.”
317
The ADAAA also expanded the intended scope of disability stating that
(C) An impairment that substantially limits one major life activity
need not limit other major life activities in order to be considered a
disability; (D) An impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when
308
Id. at 104 Stat. 329–30.
309
Id.
310
Alex B. Long, Introducing the New and Improved Americans with Disabilities Act: Assessing
the ADA Amendments Act of 2008, 103 N
W. U.L. REV. COLLOQUY 217 (2008).
311
Id. at 218 (“People with a variety of serious physical or mental impairments, ranging from
AIDS, to cancer, to bipolar disorder, have been found not to have disabilities under the ADA.”).
312
527 U.S. 471, 488 (1999).
313
Id. at 489.
314
534 U.S. 184, 197 (2002).
315
ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified at 42 U.S.C. §
12101).
316
Id.
317
Id.
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active; [and] (E)(i) The determination of whether an impairment
substantially limits a major life activity shall be made without
regard to the ameliorative effects of mitigating measures. . . .
318
The ADAAA has resulted in more claims under the ADA making it past
motions to dismiss and for summary judgment based on the plaintiff not
meeting the Act’s definition of disabled.
319
1. Normal Pregnancy
Prior to the ADAAA, most pregnancy related disability claims failed
under the ADA either because the duration of the impairment was
considered too short to be a disability; the courts’ “overly restrictive
interpretation” of “whether an impairment ‘substantially limited’ a ‘major
life activity’”; or courts determining that “conditions related to a ‘normal
pregnancy’ were . . . not considered impairments.”
320
The changes to the
definition of disability under the ADAAA have “eas[ed] the duration
requirement” and stopped courts from applying strict interpretations of
what substantially limits a major life activity, but the idea that normal
pregnancy conditions are not impairments continues to limit the
applicability of the ADAAA to pregnancy.
321
The Supreme Court in Young anticipated that the “expanded . . .
definition of ‘disability’ under the ADA” may “limit the future significance of
our interpretation of the [PDA],” suggesting that most pregnancy
accommodation needs may be covered as a result of the ADAAA.
322
However,
despite the ADAAA clarifying that the definition of disability under the ADA
should be construed broadly, courts have still found pregnancy not to be a
disability “based on the fact that pregnancy and its complications have only
a temporary effect.”
323
Jeanette Cox identified the largest barrier to courts
recognizing pregnancy as a disability under the ADA as “the assumption
that the ADA only encompasses medically diagnosed disorders.”
324
While
pregnancy related impairments are likely to be covered under the ADAAA,
courts still find that accommodation needs related to pregnancy itself, and
not a complication or impairment arising from pregnancy, are not
disabilities.
325
An examination of cases decided both before and Congress
amended the ADA reveals that the ADAAA has not resulted in substantial
318
Id. at 122 Stat. 3556.
319
Stephen F. Befort, An Empirical Examination of Case Outcomes Under the ADA Amendments
Act, 70 W
ASH. & LEE L. REV. 2027, 2071 (2013).
320
Joan C. Williams, Robin Devaux, Danielle Fuschetti, Carolyn Salmon, A Sip of Cool Water:
Pregnancy Accommodation After the ADA Amendments Act, 32 Y
ALE L. & POLY REV. 97, 109 (2013).
321
Id. at 113.
322
Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1348 (2015).
323
Mary Ziegler, Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination,
and Reproductive Liberty, 93 D
ENV. L. REV. 219, 269 (2015) (citing Serednyj v. Beverly Healthcare,
LLC, 656 F.3d 540, 554 (7th Cir. 2011)).
324
Jeannette Cox, Pregnancy As “Disability” and the Amended Americans with Disabilities Act,
53 B.C.
L. REV. 443, 445 (2012).
325
See Widiss, supra note 15, at 1434.
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change in how courts analyze pregnancy-related medical conditions, such as
miscarriage, under the ADA.
326
2. Pregnancy-Related Complications, Including Miscarriage
a. Pre-ADAAA Cases
Before passage of the ADAAA, Courts were split on whether
miscarriage constituted a disability under the ADA. In Conley v. United
Parcel Serv., 88 F. Supp. 2d 16, 19 (E.D.N.Y. 2000), the plaintiff brought suit
for being harassed and disciplined for missing more work than was allowed
under the company sick leave policy due to a miscarriage. However, because
she could not show any major life activities that were limited by her
miscarriage, and pointed to no case law that articulated the premise that
courts do consider pregnancy or miscarriage an ADA disability, the court
stated:
For the purposes of the ADA, short term, temporary restrictions are
not “substantially limiting” and do not render a person “disabled.”
Id. Conditions, such as pregnancy, that are not the result of a
physiological disorder are not impairments, nor are temporary,
non-chronic impairments of short duration with little or no long
term or permanent impact. 29 C.F.R. § 1630.2(h)(1). In the present
case, the Plaintiff alleges that her miscarriage constitutes a
“disability.” However, the Plaintiff does not articulate any “major
life activity” that her miscarriage “substantially limited.” Any
limitations on the Plaintiff’s activities resulting from her
miscarriage were of short duration, as she returned to work without
any further need for accommodation after her five day recovery
period. As the EEOC has explained, short-term, non-chronic
impairments with no permanent impact, such as the Plaintiff’s
miscarriage here, are not considered “disabilities” under the ADA.
Likewise, the court in Tsetseranos v. Tech Prototype, Inc.,
327
found
that neither pregnancy nor pregnancy-related conditions could be considered
disabilities under the ADA.
328
This court relied on the guidance published by
326
Commentators predicted that expanded coverage of disabilities from the ADAAA should lead
to more comparators for plaintiffs in pregnancy discrimination cases and as a result greater
protection under the PDA. Id. at 1439; Williams et al., supra 320, at 113. The idea was that “[e]ven
when courts find the ADAAA not to cover pregnancy directly, it “expands the pool of comparators to
whom a pregnant woman may point when seeking to use comparators as evidence of discrimination
under the PDA.” Williams et al., supra note 320, at 113. But a close analysis of PDA decisions after
the 2008 ADA amendments suggests that these predictions were overly optimistic; the cases
suggested mixed results. See Part II.A. supra.
327
893 F. Supp. 109, 119 (D.N.H.1995).
328
Other courts found that—absent unusual circumstances—pregnancy in and of itself is not a
disability. See Richards v. City of Topeka, 934 F. Supp. 378, 382 (D.Kan.1996); Jessie v. Carter
Health Care Ctr., 926 F. Supp. 613, 616 (E.D.Ky.1996); Villarreal v. J.E. Merit Constructors, Inc.,
895 F. Supp. 149, 152 (S.D.Tex.1995); Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119
(D.N.H.1995); Byerly v. Herr Foods, Inc., 1993 WL 101196, at *4 (E.D.Pa. April 6, 1993). This is
widely established.
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the EEOC (cited above) that defined pregnancy and related conditions as not
constituting an impairment under the ADA.
In cases where the plaintiff was able to show that a miscarriage or
pregnancy did limit substantial life activities, however, courts allowed these
conditions to be considered disabilities under the ADA. For example, in
Navarro v. Pfizer Corp.,
329
the court stated: “While pregnancy itself may not
be an impairment, the decided ADA cases tend to classify complications
resulting from pregnancy as impairments.”
330
Similarly, in Spees v. James
Marine, Inc.,
331
the court found that pregnancy-related impairments not
related to a normal pregnancy (such as miscarriage) are a disability under
the ADA.
332
Shortly after being employed as a welder for James Marine, Inc.
(JMI), Heather Spees discovered that she was pregnant. At the direction of
her foreman, Spees obtained a note from her physician restricting her to
light-duty work, which resulted in JMI reassigning her to a position in the
company’s tool room. JMI terminated Spees two months later when a second
doctor placed her on bedrest for the duration of her pregnancy. Spees sued
JMI and its subsidiary, JamesBuilt, LLC, for disability and
discrimination.
333
Reversing the trial court’s grant of summary judgement
for the employer and remand for further proceedings,
334
the appellate court
found that Spees’ past history of miscarriage could be an impairment under
the ADA, and she could arguably prove the other elements of her ADA claim
as well.
335
b. Post-ADAAA Cases
Despite the passage of the ADAAA, it does not seem as though courts
are any more likely than prior to the ADAAA to read the ADA broadly to
cover miscarriage. For example, the Seventh Circuit, in Serednyj v. Beverly
Healthcare, LLC
336
stated that pregnancy-related complications which did
not last a minimum of six months were not an ADA-covered disability. Part
of the case was overturned by Young, which incorporated the ADAAA. The
facts of the case are summarized by the appellate court as follows:
329
261 F.3d 90, 97 (1st Cir. 2001).
330
See also Gabriel v. City of Chicago, 9 F. Supp.2d 974, 981–82 (N.D.Ill.1998); Hernandez v.
City of Hartford, 959 F. Supp. 125, 130 (D.Conn.1997); Cerrato v. Durham, 941 F. Supp. 388, 393
(S.D.N.Y.1996); Patterson v. Xerox Corp., 901 F. Supp. 274, 278 (N.D.Il.1995); Darian v. Univ. of
Mass. Boston, 980 F. Supp. 77, 85–87 (1997); Garrett v. Chicago Sch. Reform Bd. of Trustees, 1996
WL 411319, at *2–3 (N.D.Ill. July 19, 1996).
331
617 F.3d 380, 397 (6th Cir. 2010).
332
See Spees v. James Marine, Inc., 617 F.3d 380, 397 (6th Cir. 2010). The court states:
“Pregnancy-related conditions have typically been found to be impairments where they are not part
of a “normal” pregnancy . . . Susceptibility to a miscarriage, moreover, has been deemed by some
courts to be such a condition. . . .”
333
Id. at 384.
334
Id. at 380.
335
Id. at 397.
336
656 F.3d 540 (7th Cir. 2011), abrogated by Young v. United Parcel Serv., Inc., 135 S. Ct. 1338
(2015).
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Beverly Healthcare, LLC (“Beverly”), employed Victoria Serednyj
as an Activity Director in Beverly’s Golden Living nursing home in
Valparaiso, Indiana, from August 2006 to March 2007. In early
January 2007, Serednyj learned she was pregnant, and, at the end
of February 2007, she began to experience pregnancy-related
complications. Her doctor placed her on bed rest for two weeks, and,
at the end of this two-week period, her doctor placed her on light
duty restrictions. Serednyj asked to be accommodated, and Beverly
denied her request under its modified work policy. Because
Serednyj also did not qualify for leave under the Family Medical
Leave Act (“FMLA”), Beverly terminated her employment. Serednyj
then filed suit against Beverly, alleging gender discrimination
under Title VII of the Civil Rights Act of 1964 (“Title VII”),
pregnancy discrimination under Title VII, as amended by the
Pregnancy Discrimination Act (“PDA”), disability discrimination
under the Americans with Disabilities Act (“ADA”), and
retaliation.
337
The court affirmed the district court’s summary judgment order in favor of
the employer.
338
Along the same lines, in Love v. First Transit,
339
the plaintiff’s case
did not survive summary judgment because she was unable to show she
suffered pregnancy complications that imposed a substantial limit on her
major life activities.
340
She worked as a customer service representative for
a public transit customer service call center.
341
The plaintiff was dismissed
from her job after failing to provide medical documentation explaining her
absence for a probable miscarriage on or around December 8, 2014, after she
was instructed to provide such documentation.
342
She missed just part of one
day of work.
343
It was unclear to the employer and the court whether or not
the plaintiff suffered her miscarriage on the day she missed work.
344
Although the plaintiff did have a miscarriage, the court found that it did not
qualify for a disability under the ADA because it did not substantially limit
her life activities.
345
The court reasoned that although the post-ADAAA
regulations state that “an impairment lasting or expected to last fewer than
six months” may be a disability, “[p]laintiff does not cite any case law holding
that an impairment lasting less than a day can qualify as a ‘substantial limit’
on major life activities.”
346
It said:
That may be because the EEOC’s Interpretive Guidance continues
to state—even after the ADAAA—that “conditions, such as
337
Id. at 544.
338
Id.
339
No. 16-cv-2208, 2017 WL 1022191, at *6 (N.D. Ill. Mar. 16, 2017).
340
Id. at *6.
341
Id. at *1.
342
Id.
343
Id.
344
Id.
345
Id.
346
Id. at *5–6 (quoting 29 C.F.R. § 1630.2(j)(1)(ix)).
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pregnancy, that are not the result of a physiological disorder are
also not impairments.” 29 C.F.R. Pt. 1630, App. § 1630.2(h)
(emphasis added). Furthermore, the EEOC's post-ADAAA
enforcement guidelines on pregnancy discrimination continue to
advise that “pregnancy itself is not an impairment within the
meaning of the ADA, and thus is never on its own a disability.
347
In another decision, in dicta, one court cites EEOC guidance to
explain that “conditions like . . . pregnancy, that are not the result of a
physiological disorder[,] are also not impairments.”
348
Further, one court has
summarized pre- and post-ADAAA case law without distinguishing any
difference between the two, explaining that courts have generally held that
normal pregnancy and post-pregnancy do not qualify as a disability.
349
In Adirieje v. ResCare, Inc., the court found that a month of
intermittent cramping and subsequent miscarriage did not qualify as a
disability under the ADA.
350
The court explained the law on pregnancy
related impairments qualifying as disabilities, stating “[t]he case law and
the EEOC’s regulations and interpretive guidance are clear that pregnancy
is not a disability for purposes of the ADA absent unusual circumstances,”
so “[t]he most persuasive decisions draw a distinction between a normal,
uncomplicated pregnancy, and an abnormal one—i.e., one with a
complication or condition arising out of, but distinguishable from, the
pregnancy.”
351
The court determined that even if the plaintiff’s cramps and
miscarriage were “a pregnancy related complication,” there was “no evidence
that her cramps limited her ability to work or other major life activities” and
similarly that her miscarriage resulted in only about six hours of
hospitalization and that “she was released to return to work without any
restrictions three days after the hospital visit.”
352
The decisions in both Love
and Adirieje show that plaintiffs will have difficulty getting protection under
the ADA for miscarriages unless they base their pleadings on more long
lasting complications or effects.
353
347
Id. at *5.
348
Mark Richardson, v. Chicago Trans. Auth., No. 16-CV-3027, 2017 WL 5295701, at *4 (N.D.
Ill. Nov. 13, 2017).
349
Mayer v. Pro. Ambulance, LLC, 211 F. Supp. 3d 408, 420 (D.R.I. 2016) (citations omitted).
This interpretation of the ADAAA is consistent with agency interpretation. For example, in its notice
of proposed rulemaking implementing the ADAAA, the Department of Justice explained:
Other conditions, such as pregnancy, that are not the result of a physiological disorder
are also not impairments. However, a pregnancy-related impairment that substantially
limits a major life activity is a disability under the first prong of the definition.
Alternatively, a pregnancy-related impairment may constitute a “record of” a
substantially limiting impairment, or may be covered under the “regarded as” prong if it
is the basis for a prohibited action and is not both “transitory and minor.”
See Amendment of Americans with Disabilities Act Title II and Title III Regulations to Implement
ADA Amendments Act of 2008, CRT Docket No. 124; AG Order No. RIN 1190–AA59.
350
No. 118CV01429, 2019 WL 4750037, at *8 (S.D. Ind. Sept. 30, 2019).
351
Id.
352
Id. at *8–9.
353
However, plaintiffs that have a high-risk pregnancy following previous miscarriages seem to
have more success under the ADA. In Wadley v. Kiddie Acad. Int’l, Inc., the court found that the
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3. The ADA and Post-Miscarriage Depression
The text of the ADA makes no reference whatsoever to the duration
of an impairment or disability. Congress in its legislative history made clear
that the ADA was not expected to apply to “trivial” impairments but did not
refer explicitly to length of time as a necessary requirement to be deemed
disabled.
354
Yet, from the beginning, courts interpreted the ADA such that
temporary, relatively minor mental health issues were not covered. Thus,
courts consistently found that the ADA does not cover leave for transient
periods of psychological distress such as depression due to a major life
event.
355
Similarly, courts held that that the transient nature of a mental
health episode prevents an affected individual from experiencing a
“substantial limitation on their ability to undertake major life activities,”
356
which is required to be considered a person with a disability under the ADA.
Likewise, an early (1997) EEOC enforcement guidance on psychiatric
disabilities stated that: “An impairment . . . is not substantially limiting if it
lasts for only a brief time or does not significantly restrict an individual’s
ability to perform a major life activity.”
357
There are no reported decisions directly addressing ADA claims
based on depression following miscarriage, likely because of the stigma
plaintiff’s claim for failure to accommodate relating to having a disability based on a high risk
pregnancy after a prior miscarriage was sufficient to survive summary judgment. No. CV 17-05745,
2018 WL 3035785, at *5 (E.D. Pa. June 19, 2018).
354
See S. Rep. No. 116, pt. 1, at 23 (1989) (“Persons with minor, trivial impairments such as a
simple infected finger are not impaired in a major life activity”); H.R. Rep. No. 485, pt. 2, at 52 (1990)
(same). This point was also emphasized by thirteen of the seventeen Republicans members of the
House of Representatives Judiciary Committee in the legislative history of the ADAAA. See H.R.
Rep. No. 110-730, pt. 2, at 30 (2008) (“We want to make clear that we believe that the drafters and
supporters of this legislation, including ourselves, intend to exclude minor and trivial impairments
from coverage under the ADA, as they have always been excluded.”). For a full list of the House
Judiciary Committee members in 2008, see the National Archives record of the 2008 U.S. House of
Representatives, Committee on the Judiciary,
https://www.webharvest.gov/congress110th/20081212012537/http://judiciary.house.gov/about/mem
bers.html (last visited Feb. 17, 2022).
355
See, e.g., Ramirez v. New York City Bd. of Educ., 481 F. Supp. 2d 209 (E.D.N.Y. 2007)
(holding a teacher who was absent for more than a third of the school year due to depression was
not a qualified individual under the ADA, reasoning that the teacher’s ailments were temporary and
did not substantially limit his ability to teach).
356
See Williams v. Philadelphia Hous. Auth. Police Dep’t., 380 F.3d 751 (3d Cir. 2004)
(stipulating that a number of factors should be considered—including the nature and severity of the
impairment, its duration, and its permanent or long-term impact— and concluding that, as a matter
of law, a “transient, non-permanent condition” or a “temporary, non-chronic impairment of short
duration” fell short of ADA requirements, because it was not substantially limiting to major life
activities); Mescall v. Marra, 49 F. Supp. 2d 365, 367 (S.D.N.Y. 1999) (finding that an employee
suffering from panic attacks, depression, and dermatological symptoms associated with stress was
not disabled under the ADA, because the employee’s mental condition was temporary, and she had
no impairments once she began working as a guidance counselor under a different supervisor).
357
U.S. Equal Emp. Opportunity Comm’n, No. 915.002, Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997),
https://www.eeoc.gov/laws/guidance/enforcement-guidance-ada-and-psychiatric-disabilities.
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associated with depression and mental illness,
358
culture of secrecy
surrounding miscarriage,
359
risks of retaliation for seeking workplace
accommodations due to miscarriage,
360
and absence of a right to ADA
accommodations for transient disabilities before the 2008 ADA amendments.
But cases on post-partum depression and depression generally are
instructive.
Before passage of the ADAAA, courts were almost uniformly
unwilling to find that a short-term episode of depression qualified as a
disability under the ADA. For example, in Sanders v. Arneson Products, the
Ninth Circuit Court of Appeals held that a temporary cancer-related
psychological disorder lasting three and a half months was not sufficient to
constitute a disability under the ADA.
361
Similarly, in Morales v. Pabon
Community Health Center, the court held that an employee’s temporary
depression and anxiety did not constitute a disability within the meaning of
the ADA.
362
After the enactment of the ADAAA, courts seem more willing to find
that mental disabilities are covered by the statute.
363
Yet there is still
substantial uncertainty as to Congress’s intent to expand the Act’s coverage
to temporary disabilities such as depression following a miscarriage. The
ADAAA explicitly provides in its statutory language that individuals cannot
be protected as a person “regarded as” disabled if their impairment lasts less
than six months.
364
Whether this exclusion applies to individuals seeking
accommodations for actual disabilities is unclear from the statute itself, as
Congress was silent on that question. In post-ADAAA regulations, the EEOC
has taken the position that this limitation does not apply to persons who are
seeking accommodations based on actual disabilities.
365
And the EEOC’s
post-ADAAA enforcement guidelines on pregnancy discrimination even
includes depression as an example of a pregnancy-related impairment that
358
See REBECCA L. COLLINS, ET AL., INTERVENTIONS TO REDUCE MENTAL HEALTH STIGMA AND
DISCRIMINATION, RAND CORP. 3 (2012) (“Mental illness stigma is common in the United States. . . .
In 2006, nearly one in three U.S. adults endorsed the view that schizophrenia and depression are a
result of “bad character.” . . .”); Patrick W. Corrigan et al., Challenging the Public Stigma of Mental
Illness: A Meta-Analysis of Outcome Studies, 63 P
SYCH. SERVS. 963, 967 (2012) (“[E]mployers who
endorse stigma may be less likely to hire people with mental illness. . . .”).
359
See notes 417–422 infra and accompanying text.
360
See discussion infra Part III.A.
361
Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996).
362
310 F. Supp. 955, 416 (2004).
363
Debbie N. Kaminer, Mentally Ill Employees in the Workplace: Does the ADA Amendments
Act Provide Adequate Protection?, 26 H
EALTH MATRIX 205, 224 (2016) (showing that “the summary
judgment win rate for employers based on disability status dropped from . . . 60% to 40% in cases
involving a mental disability).
364
See 42 U.S.C. § 12102(3)(B). The ADA includes three alternative definitions of “disability”
covering different scenarios in which disability discrimination may occur. The three definitions are
a person with an “actual” disability, “record of” a disability, and a person whose is “regarded as” a
person with a disability by their employer. 42 U.S.C. §12102(1).
365
See Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act, as Amended, 76 Fed. Reg. 16,978 (Mar. 25, 2011) (codified as amended at 29 C.F.R.
pt. 1630; 29 C.F.R. § 1630.2(j)(iv)).
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should qualify as a disability under the ADA, as amended.
366
But federal
courts, including the Supreme Court, have shown that they have no
reservations rejecting EEOC’s regulations and interpretive guidances when
deciding cases under ADA.
367
Consistent with this lack of deference, post
ADAAA, some courts have continued to cite pre-ADAAA precedents
excluding temporary or situational depression from the Act’s protections,
even where the plaintiff’s claim is not brought under the “regarded as”
prong.
368
On the other hand, other courts have found that temporary or
situational depression can be a disability.
369
Still, plaintiffs seem to fare
better on this type of claim if their symptoms are severe and relatively long
lasting. For example, in Reilly v. Revlon, Inc., the court found that the
plaintiff’s post-partum depression that resulted in her “two-week
hospitalization” and five months of “significant limitations in her ability to
sleep, eat, think and concentrate, taken, collectively create an issue of fact
as to whether her postpartum depression rises to the level of an emotional
or mental illness.”
370
The court denied the employer’s motion for summary
judgment based on the plaintiff not having a disability.
371
Along the same
lines, in Hostettler v. College of Wooster,
372
the Sixth Circuit determined that
the plaintiff was disabled under the ADA despite some of her symptoms of
her “severe post-partum depression” being episodic because “when [plaintiff]
was experiencing her depression and anxiety she was substantially limited
in her ability to care for herself, sleep, walk, or speak, among others.”
373
Further, the plaintiff was experiencing post-partum panic attacks, “during
which she would have difficulty breathing, thinking, and even walking.”
374
366
U.S. Equal Emp. Opportunity Comm’n, No. 915.003, Enforcement Guidance: Pregnancy
Discrimination and Related Issues (June 25, 2015), 2015 WL 4162723, at *19–20 [hereinafter 2015
EEOC Pregnancy Enforcement Guidance] (“[A] number of pregnancy-related impairments that
impose work-related restrictions will be substantially limiting, even though they are only temporary.
. . . Examples include pregnancy-related . . . depression . . . .”).
367
Melissa Hart, Skepticism and Expertise: The Supreme Court and the EEOC, 74 FORDHAM L.
REV. 1937, 1937 (2006); see also Lisa Eichhorn, The Chevron Two-Step and the Toyota Sidestep:
Dancing Around the EEOC’s “Disability” Regulations Under the ADA, 39 W
AKE FOREST L. REV. 177,
177 (2004).
368
See, e.g., Seibert v. Lutron Elecs., 408 Fed. Appx. 605, 608 (3d Cir. 2010) (holding that
plaintiff’s depression, induced by specific, non-recurring events, was temporary and thus not a
disability within the meaning of the ADA); MacEntee v. IBM (Int’l Bus. Machines), 783 F. Supp.2d
434, 443 (2011) (“Courts in this circuit have found that depression may qualify as a disability for
purposes of the ADA, provided that the condition is not a temporary psychological impairment.”)
(internal citations omitted).
369
See, e.g., Moore v. CVS Rx Servs., Inc., 142 F. Supp.3d 321, 344 (2021) (finding that
pregnancy-related complications, such as round-ligament syndrome and postpartum depression,
constitute “disabilities” as contemplated by the ADA, even if pregnancy is not a qualifying disability).
However, of note, the parties stipulated as to this issue in this case. Id. Cf. Nagle v. E. Greenbush
Cent. Sch. Dist., No. 16-cv-00214, 2018 WL 4214362, at *16 (N.D.N.Y. Feb. 21, 2018) (holding that
facts showing premature labor resulting in hospitalization were sufficient to raise a triable of fact
as to whether Plaintiff was disabled).
370
620 F. Supp. 2d 524, 539–40 (S.D.N.Y. 2009).
371
Id. at 541.
372
895 F.3d 844, 854 (6th Cir. 2018).
373
Id. at 854.
374
Id. at 850.
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The plaintiff had been fired when she could not immediately come back to
work full-time after a maternity leave due to post-partum depression.
375
In sum, it appears that, depending on the severity of the depression
(and length of symptoms), the ADAAA could make it more likely that
employees who are terminated or denied accommodations for depression
following a miscarriage to at least get past their employer’s motion for
summary judgement. Congress did, after all, intend to restore the ADA to
its original purpose and has directed courts to construe the definition of
disability under the ADA in favor of broad coverage.
376
But the results
overall have been mixed for individuals with depression. Some courts still
persist in clinging to the pre-ADAAA narrow definition of disability in ADA
cases involving depression, especially if the depression is not long-lasting or
severe. Because it cannot yet be said that there has been a sea change in
judicial interpretation with regard to whether episodic depression related to
a traumatic life event counts as a disability under the ADA, individuals
affected by depression related to miscarriage are not clearly protected by the
statute.
4. Bedrest
Like the depression cases, courts seem split on whether a pregnant
employee may take ADA leave when the person is ordered on bedrest.
Largely, this depends on how long bed rest is ordered for.
In two cases, plaintiffs survived motions for summary judgment
when they had experienced adverse employment actions after using ADA
leave for bedrest lasting two months and eleven weeks, respectively. A
district court in Tennessee precluded summary judgment in favor of the
employer in regards to whether an employee, who had taken leave under the
ADA after she was put on bedrest for her pregnancy, suffered an adverse
employment action when she was subsequently given a poor rating on her
annual performance review.
377
Despite the employer claiming that the
review was based on performance issues unrelated to the plaintiffs’ ADA
leave, the court considered the nature of the comments on the review and
the temporal proximity of the plaintiff’s leave and performance enough to
survive summary judgment.
378
A District Court in D.C. held that a plaintiff
had shown she was disabled during her period of bedrest, which was
prescribed for her pregnancy.
379
Therefore, since she had taken ADA leave
and was subsequently terminated, she “suffered the consequences of that
alleged discriminatory act,” and even though it occurred “after she gave birth
375
Id. at 851. The Sixth Circuit reversed the district court’s grant of summary judgment to the
employer and remanded on the question of whether her need to work part-time for two additional
months made her “otherwise qualified” for her job, or not, under the ADA. Id. at 859.
376
42 U.S.C. § 12102(4)(A).
377
Meachem v. Memphis Light, Gas & Water Div., 119 F. Supp. 3d 807, 820 (W.D. Tenn. 2015).
378
Id. at 821.
379
Holmes v. Univ. of the D.C., 244 F. Supp. 3d 52, 64 (D.D.C. 2017).
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[it] does not vitiate what was, at the time it occurred, an allegedly unlawful
act.”
380
Conversely, a District Court in Georgia held that a two-week period
of pregnancy-related bedrest did not qualify as a disability.
381
The plaintiff
worked as a successful bartender at the defendant’s themed restaurant that
required “female staff . . . to wear certain revealing uniforms.”
382
After the
plaintiff announced her pregnancy and suffered complications that led to two
weeks of doctor-recommended bedrest, the defendant assigned the plaintiff
to work at a less popular restaurant location, reducing the plaintiff’s income,
and ultimately terminated her.
383
Though the plaintiff prevailed on her Title
VII and FMLA claims, she did not on her ADA claims; the court held that
she did not “show her pregnancy-related complications constituted a
disability under the ADA.”
384
D. The Occupational Safety and Health Protection Act
Low-income women and women of color are more likely to work in
sectors of the economy involving taxing physical labor, such as in
warehouses,
385
food processing plants,
386
low-paid service jobs,
387
and
nursing and retirement homes and as home-health aides.
388
These jobs and
work environments often entail long hours standing on one’s feet; lifting
heavy boxes; lifting, transferring or wheeling or bodies; working in extreme
heat or cold, and working night shifts,
389
all conditions that can all increase
380
Id.
381
Alger v. Prime Rest. Mgmt., LLC, No. 15-CV-567, 2016 WL 3741984, at *8 (N.D. Ga. July 13,
2016).
382
Id. at *1.
383
Id. *1–2.
384
Id. at *8. In its analysis, the court noted that a “pregnancy per se” is not a disability, and
that though pregnancy complications may become disabilities, to do so, they must satisfy the long
list of criteria and exceptions the court included in its rule language. Id. at *7.
385
See, e.g., Ellen Reese, Gender, Race, and Amazon Warehouse Labor in the United States, in
T
HE COST OF FREE SHIPPING: AMAZON IN THE GLOBAL ECONOMY 107 (Jake Alimahomed-Wilson &
Ellen Reese eds., 2020) (describing Amazon’s female workers as “mostly women of color”).
386
See, e.g., Human Rights Watch, Case Studies of Violations of Workers’ Freedom of
Association: Food Processing Workers and Contingent Workers, 32 I
NTL J. HEALTH SERVS. 755, 763
(2002) (“Nearly all the plant’s workers [at Jenkens Foods’ Cabana potato chip plant in Detroit,
Michigan] are African- American, and a majority are women.”).
387
BUREAU OF LAB. STATS., U.S. DEPT OF LAB., CURRENT POPULATION SURV., EMPLOYED
PERSONS BY OCCUPATION, RACE, HISPANIC OR LATINO ETHNICITY,
https://www.bls.gov/cps/tables.htm#annual (under “CPS Tables” select “10. Employed persons by
occupation, race, Hispanic or Latino ethnicity, and sex”) (reporting that one-quarter (25%) of black
women were employed in service jobs in 2021 compared with less than one-fifth (18.6%) of white
women).
388
Janette Dill & Mignon Duffy, Structural Racism and Black Women’s Employment in the US
Health Care Sector, 41 H
EALTH AFFAIRS 265, 266 (2022) (“Women of color are concentrated in the
most physically demanding direct care jobs (nursing aide, licensed practical nurse, or home health
aide), along with the “back-room” jobs of cleaning and food preparation in hospitals, schools, and
nursing homes.").
389
See, e.g., Reese, supra note 385, at 112. According to Reese, Amazon warehouse workers on
the night shift explained some of their challenges as follows:
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52
the risk of miscarriage.
390
Yet when employers deny employee requests for
light duty or other accommodations, the law generally does not provide much
protection to pregnant workers.
In a 2018 report, the New York Times reviewed thousands of legal
documents and court records of pregnant women whose pregnancies resulted
in miscarriages or premature labor, all because their requests for temporary
modifications to their jobs were rejected.
391
For example, Ceeadria Walker,
an African-American woman, was a warehouse worker at XPO Logistics, “a
global provider of transportation and contract logistics company.”
392
XPO is
the largest provider of last mile shipping for heavy goods in North America—
arranging the home delivery of heavy goods that typically require assembly
or installation, such as washing machines, refrigerators, exercise equipment
and home entertainment systems.
393
Walker often worked twelve-hour shifts
at XPO’s Memphis warehouse.
394
When she became pregnant, she gave her
XPO supervisor a doctor’s letter from OB/ GYN Centers of Memphis saying
she should not lift more than fifteen pounds.
395
She asked to reduce the hours
on her feet and to be assigned to an area handling lighter items. Her
supervisor ignored her request. Rather, he regularly sent her to a conveyor
belt where she spent her days “hoisting 45-pound boxes.”
396
Walker thought
Destiny, a single mom who worked graveyard shift [at an Amazon warehouse] from 6:30
p.m. until 5 a.m. in San Bernardino four days per week, had a care provider to watch her
children at night in Riverside, where she lived (about 30 minutes away from her
workplace). . . . As she describes, “I would pick them up around 5:30 a.m. I would sleep
in the parking lot at my kids’ school, have them dressed and ready to go, and I would
then drop them off at school by 8 in the morning.” Kelly, another mother employed in a
graveyard shift, struggled to take her infant daughter to daytime medical appointments
and feared something might happen to her daughter if she fell asleep while watching
her. After Amazon’s management denied all four of her requests for a daytime shift, she
finally accepted Amazon’s “offer” of compensation for agreeing to quit and never work for
the company again.
Id. at 112.
390
See sources cited infra notes 401–408 and accompanying text. Of relevance here:
Since the era of slavery, the dominant view of black women has been that they should
be workers, a view that contributed to their devaluation as mothers with caregiving
needs at home. African-American women’s unique labor market history and current
occupational status reflects these beliefs and practices. . . .Black women’s main jobs
historically have been in low-wage agriculture and domestic service. . . . The 1970s was
also the era when large numbers of married white women began to enter into the labor
force and this led to a marketization of services previously performed within the
household, including care and food services. Black women continue to be overrepresented
in service jobs. . . . . The legacy of black women’s employment in industries that lack
worker protections has continued today. . . .
Nina Banks, Black Women’s Labor Market History Reveals Deep-Seated Race and Gender
Discrimination, E
CON. POLY INST. (Feb. 19, 2019), https://www.epi.org/blog/black-womens-labor-
market-history-reveals-deep-seated-race-and-gender-discrimination/
391
Jessica Silver-Greenberg & Natalie Kitroeff, Miscarrying at Work: The Physical Toll of
Pregnancy Discrimination, N.Y.
TIMES, Oct. 21, 2018,
https://www.nytimes.com/interactive/2018/10/21/business/pregnancy-discrimination-
miscarriages.html.
392
About Us, XPO LOGISTICS, https://www.xpo.com/about-us/ (last visited Feb. 5, 2022).
393
Id.
394
See Silver-Greenberg & Kitroeff, supra note 391.
395
Id.
396
Id.
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53
about leaving. But she couldn’t just quit her job—she needed the money.
397
One day, after a long shift of handling “hundreds” of these heavier boxes,
Ceeadria miscarried. “This was going to be my first,” Ceeadria told The New
York Times.
398
Five workers had miscarriages at the same warehouse since
2014 after being refused light duty work.
399
According to the Center for Disease Control’s National Institute for
Occupational Safety and Health,
400
as well as guidelines published by the
American College of Obstetricians and Gynecologists (ACOG),
401
there is an
increased risk of miscarriage for women who do extensive lifting in their
jobs. Metanalyses of studies measuring the effect of occupational lifting on
pregnancy outcomes reaches a similar conclusion.
402
Pregnant women are
also a greater risk of musculoskeletal injuries from lifting and prolonged
standing, as well as of falling.
403
Accordingly, the ACOG adopted the
National Institutes of Occupational Safety and Health recommended
limitations for lifting by pregnant workers.
404
These recommendations, for
example, state that women in the early gestation period, defined as less than
397
Id.
398
Id.
399
Id.
400
See Physical Demands (lifting, standing, bending) – Reproductive Health, THE NATIONAL
INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH (Oct. 19, 2021),
https://www.cdc.gov/niosh/topics/repro/physicaldemands.html (“heavy lifting, standing for long
periods of time, or bending a lot during pregnancy could increase your chances of miscarriage,
preterm birth, or injury during pregnancy.”).
401
See COMMITTEE ON OBSTETRIC PRACTICE, AM. COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS, ACOG COMMITTEE OPINION NO. 733: EMPLOYMENT CONSIDERATIONS DURING
PREGNANCY AND THE POSTPARTUM PERIOD e119 (2018) [hereinafter ACOG 2018 GUIDELINES],
https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-
opinion/articles/2018/04/employment-considerations-during-pregnancy-and-the-postpartum-
period.pdf.
402
See Agathe Croteau, Occupational Lifting and Adverse Pregnancy Outcome: A Systematic
Review and Meta-Analysis, 77 O
CCUPATIONAL & ENVT MED. 496, 496 (2020) (concluding, based on a
systemic review of fifty-one studies, that for pregnant workers who lift frequently (or 10x/day) lift
heavy (or 10 kg) loads, positive associations are measured with preterm delivery and spontaneous
abortion). For an earlier, often-cited, large cohort study out of Denmark, see Mette Juhl et al.,
Occupational Lifting During Pregnancy and Risk of Fetal Death in a Large National Cohort Study,
39 S
CANDINAVIAN J. WORK & ENVT HEALTH 335 (2013).
403
See ACOG 2018 GUIDELINES, supra note 401, at e120; Bulent Cakmak et al., Postural
Balance and the Risk of Falling During Pregnancy, 29 J. M
ATERNAL-FETAL & NEONATAL MEDICINE
1623, 1625 (2016). A large study of 3,997 pregnant women found the overall fall rate during
pregnancy was 26.8%, and of the women in this study who were employed and fell at work, the
occupations with the highest rates of falling were food service, other service (such as beauticians and
housecleaners), and teaching and childcare and this was due to slippery floors, moving at a hurried
pace, and carrying an object or child. See Karri Kunning et al., Falls in Workers During Pregnancy:
Risk Factors, Job Hazards, and High Risk Occupations, 44 A
M. J. INDUS. MED. 664, 668 (2003).
404
See ACOG 2018 GUIDELINES, supra note 401, at e121 (citing Leslie A. MacDonald et al.,
Clinical Guidelines for Occupational Lifting in Pregnancy: Evidence Summary and Provisional
Recommendations, 209 A
M. J. OBSTETRICS & GYNECOLOGY 80 (2013)). ACOG has repeated its
support of these guidelines in its most recent recommendations on exercise during pregnancy. See
C
OMMITTEE ON OBSTETRIC PRACTICE, AM. COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, ACOG
COMMITTEE OPINION NO. 804: PHYSICAL ACTIVITY AND EXERCISE DURING PREGNANCY AND THE
POSTPARTUM PERIOD e184–e185 (2020) [hereinafter ACOG 2020 GUIDELINES],
https://www.acog.org/-/media/project/acog/acogorg/clinical/files/committee-
opinion/articles/2020/04/physical-activity-and-exercise-during-pregnancy-and-the-postpartum-
period.pdf.
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54
twenty weeks, who have a long-duration, heavy lifting pattern, should not
lift greater than thirteen pounds, almost one-fourth the weight of the forty-
five pound boxes that Ceeadria Walker was ordered to lift during her long
shifts at the XPO warehouse.
Dehydration and overheating are also a risk for pregnant women
during physical activity,
405
yet women who work in industries involving
physical labor often work in unairconditioned conditions, such as
warehouses.
406
For example, investigative reporting found that workers
routinely faint at the XPO and other similar warehouses from overwork,
dehydration, and heat.
407
There is also an association of miscarriage and
night shift work.
408
Despite extensive research establishing a link between physically
demanding work and miscarriage, the most important federal law governing
occupational health and safety in the United States does not protect women
from work conditions that increase their risk of miscarriage, or provide an
effective remedy when they do. Congress passed the Occupational Safety and
Health Act (OSH Act) in 1970 to ensure employees of a work environment
free of recognized hazards.
409
Unfortunately for pregnant workers, the OSH
Act, in practice, mainly regulates occupational hazards that were most
common when the American economy consisted primarily of industrial jobs
occupied by men, such as exposure to toxic chemicals, excessive noise,
electrical hazards, and mechanical dangers.
410
The OSH Act regulates workplace safety in two ways. First, it
establishes a minimum general duty that applies to all covered employers.
However, the scope of this duty is extremely narrow; employers must only
ensure their workplaces are free from “recognized hazards that are causing
405
See ACOG 2020 GUIDELINES, supra note 404, at e180 (“During exercise, pregnant women
should stay well hydrated, wear loose-fitting clothing, and avoid high heat and humidity to protect
against heat stress, particularly during the first trimester.”).
406
See Silver-Greenberg & Kitroeff, supra note 391 (noting that there is no air-conditioning on
the floor of the XPO warehouse and that temperatures can rise past 100 degrees; “[w]orkers often
faint. . . .”); see also discussion of welder Heather Spees’ work conditions, supra notes 144–166.
407
See Silver-Greenberg & Kitroeff, supra note 391.
408
See ACOG 2018 GUIDELINES, supra note 401, at e119; Luise Moelenberg Begtrup, Night Work
and Miscarriage: A Danish Nationwide Register-Based Cohort Study, 76 O
CCUPATIONAL ENVT MED.
302, 302 (2019). In this study of 22,744 pregnant Danish women, which tracked their work schedules
and hospital admissions for miscarriage using government databases, women who had worked two
or more night shifts during the previous week had a 32% increased risk of miscarriage compared
with women who did not work nights. Id.
409
Pub. L. No. 91-596, 84 Stat. 1590 (1970) (codified at 29 U.S.C. §§651-78).
410
John D. Meyer et al., Reproductive and Developmental Hazard Management, 58 J.
OCCUPATIONAL & ENVT. MED. 94, 94 (2016) (“Industrial exposure limits promulgated for most
chemical agents by the US Occupational Safety and Health Administration (OSHA) . . . have in most
cases been established without considering protection from adverse reproductive or developmental
health effects.”); Christopher Cole, Lawmaker Worried By Nail Salon Chemicals Calls OSHA Reg
Process ‘Unacceptable,’ I
NSIDEOSHAONLINE (May 12, 2015),
https://login.ezproxy.lib.utah.edu/login?url=https://www.proquest.com/trade-journals/lawmaker-
worried-nail-salon-chemicals-calls-osha/docview/1680423894/se-2?accountid=14677 (noting that
most of OSHA’s permissible exposure limits were set in 1971 and have not been updated, exposing
some women who become pregnant, like those working in nail salons, to chemicals that appear to
increase the odds of miscarriage and developmental issues in children).
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55
or likely to cause death or serious physical harm to . . . employees.”
411
Second,
the OSH Act authorizes the Occupational Safety and Health Administration
(OSHA) to set specific standards concerning workplace safety and health.
412
However, due to the “need for substantial scientific support in a world of
scientific uncertainty, combined with challenges by industry, other
procedural hurdles, and resistance or delays within OSHA itself has resulted
in few permanent standards actually being promulgated.”
413
Finally, there
is no private cause of action for employees who allege they are injured at
work due to an OSH Act violation; rather, OSHA inspectors from the federal
agency issue citations for violations of specific standards or the general duty
clause.
414
It maintains about 2,000 inspectors who are “responsible for the
health and safety of 130 million workers (employed at more than 8 million
worksites), [which] translates into about one inspector for every 59,000
workers.”
415
“Given OSHA’s limited resources, few doubt that the agency
never uncovers many violations,”
416
much less the type of physical harms
that pregnant women experience due to work conditions increasing risk of
pregnancy.
III.
SPECIAL LEGAL OBSTACLES RELATED TO MISCARRIAGE AND
EMPLOYMENT
Women who experience miscarriage or whose pregnancies are at a
risk of miscarriage often strive to keep their health condition secret. This
secrecy is driven by a host of factors, including cultural norms; fear of
discrimination and retaliation by employers; wanting to save limited sick,
family, or disability leave for recovery and parenting after delivery (in the
case of planned pregnancies); and avoidance of invasive advice and
questions.
Studies show that women and their partners are not comfortable
talking about miscarriage and have difficulty sharing the news with
others.
417
Most women do not share news of their pregnancies until after the
411
29 U.S.C. § 654(a)(1). To establish a violation of this general duty clause, OSHA must prove
that (1) the employer failed to furnish a workplace free of a hazard, and its employees were exposed
to that hazard; (2) the hazard was recognized; (3) the hazard was causing, or was likely to cause,
death or serious physical harm; and (4) a feasible method existed to correct the hazard. See Nat'l
Realty & Constr. Co. v. Occupational Safety & Health Review Comm'n, 489 F.2d 1257, 1265-67 (D.C.
Cir. 1973).
412
See 29 U.S.C. § 655 (2018).
413
See GLYNN, SULLIVAN & ARNOW-RICHMAN, supra note 43, at 879.
414
Id. at 891.
415
Id. Although beyond the scope of this article, other aspects of the OSHA Act’s statutory
scheme further complicate enforcement of federal occupational safety standards, including the fact
that the OSH Act does not apply (is preempted) where health and safety-related matters are the
jurisdiction of other federal agencies, where states have adopted their own “at least as effective”
employment safety laws, and employers covered by other safety regimes. Id. at 877; see also generally
Paul M. Secunda, Hybrid Federalism and the Employee Right to Disconnect, 46 P
EPP. L. REV. 873
(2019) (detailing the OSH Act’s elaborate form of “hybrid federalism”).
416
See GLYNN, SULLIVAN & ARNOW-RICHMAN, supra note 43, at 894.
417
Jennifer J. Bute & Maria Brann, Co-ownership of Private Information in the Miscarriage
Context, 43 J.
APPLIED COMM. RES. 23, 24 (2015).
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56
first trimester, “so keeping a miscarriage a secret seems a natural extension
of the pregnancy secret.”
418
One study revealed that most couples perceive a
“societal-level rule” that miscarriage should be “kept behind closed doors.”
419
Another study described the decision to keep a miscarriage secret as “so
automatic as to be involuntary.”
420
This difficulty is amplified for women who
experience miscarriage in the first trimester and have not yet shared the
news of their pregnancy.
421
Other women who have shared news of their
miscarriages have reported feeling a lack of support or understanding of
their loss.
422
In addition to these cultural taboos surrounding miscarriage,
employees are often scared to tell their employers that they are pregnant
and wait as long as possible to share the news.
423
A 2011 study revealed that
many pregnant employees hide their pregnancies out of fear of negative
attitudes, discrimination, and invasive advice and questions.
424
A 2018 study
commissioned by Bright Horizons, the largest U.S. provider of employer-
sponsored childcare in the United States,
425
showed an increase in fear
among women to report to their employers that they are pregnant, with 21%
of women stating they “would be worried to tell their boss they are expecting
a child.”
426
These fears are rational considering the prevalence of pregnancy
discrimination.
427
Scholars have documented that pregnant women are less
likely to be hired or promoted and receive lower salaries than non-pregnant
applicants and employees.
428
418
Porschitz & Siler, supra note 432, at 571.
419
Jennifer J. Bute et al., Exploring Societal-level Privacy Rules for Talking About Miscarriage,
36 J.
SOC. & PERS. RELATIONSHIPS 379, 386 (2017).
420
Porschitz & Siler, supra note 432, at 575.
421
Bute et al., supra note 419, at 390–91.
422
Ariella Lang, et al., Perinatal Loss And Parental Grief: The Challenge Of Ambiguity And
Disenfranchised Grief, 63 OMEGA-
J. DEATH & DYING 183, 192 (2011).
423
Caroline Gatrell, Policy and the Pregnant Body at Work: Strategies of Secrecy, Silence and
Supra-performance, 18 G
ENDER, WORK & ORG. 158, 166 (2011); Kathryn Haynes, (Re)figuring
Accounting and Maternal Bodies: The Gendered Embodiment Of Accounting Professionals, 33 A
CCT.,
ORGS. & SOCY 328, 338 (2008) (citing example of study participant who waited five months to tell
her employer she was pregnant out of fear of not getting promotion).
424
Gatrell, supra note 423, at 166 (describing pregnant employees’ strategy of “secrecy and
silence, in which pregnancy was kept secret for as long as possible and not discussed at work, and
its physical manifestations—nausea, an expanding waistline and the threat of breaking waters and
leaking breasts—were concealed”).
425
Who We Are, BRIGHT HORIZONS, https://www.brighthorizons.com/who-we-are (last visited
Feb. 1, 2022).
426
BRIGHT HORIZONS, 2018 MODERN FAMILY INDEX 9 (increase from 12% in 2014),
https://www.brighthorizons.com/-/media/BH-New/Newsroom/Media-
Kit/MFI_2018_Report_FINAL.ashx.
427
NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES, THE PREGNANCY DISCRIMINATION ACT
WHERE WE STAND 30 YEARS LATER 2 (2008) (documenting a 65% increase in pregnancy
discrimination complaints between 1992 and 2007),
http://go.nationalpartnership.org/site/DocServer/Pregnancy_Discrimination_Act_-
_Where_We_Stand_30_Years_L.pdf.
428
See, e.g., Elizabeth Palley, Pregnancy Discrimination and the Law: Implications for Social
Work, 32 J.
WOMEN & SOCIAL WORK 188, 189 (2016) (stating that research suggests “pregnant
women in the workplace and pregnant job applicants are viewed negatively by supervisors,
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57
And there is an additional risk of disclosure of a miscarriage for some
of the most disadvantaged women: the risk of prosecution. Since its
inception, a faction of the anti-abortion movement in the United States has
been working to pass state laws that define embryos and fetuses as
persons.
429
The result has been that women can be punished for actions they
take, or don’t take, while pregnant. Experts and women’s rights
organizations have documented thousands of such cases in the past several
decades.
430
Often, these prosecutions target women of color and low-income
women.
431
Given the toxic mix of cultural secrecy surrounding miscarriage, fear
of employment discrimination or retaliation for disclosing a miscarriage—
and perhaps even the risk of being prosecuted for a failed pregnancy—it
should not be surprising that individuals who experience miscarriages
typically never tell their employers.
432
This secrecy, which itself is a product
employers, and coworkers”); Whitney Botsford Morgan et al., A Field Experiment: Reducing
Interpersonal Discrimination Toward Pregnant Job Applicants, 98 J.
APPLIED PSYCH. 799, 799
(2013).
429
MARY ZIELGER, AFTER ROE: THE LOST HISTORY OF THE ABORTION DEBATE 89, 164–65 (2015);
Michele Goodwin, Pregnancy and the New Jim Crow, 53 C
ONN. L. REV. 543, 564 (2021); Jeannie Suk
Gersen, How Fetal Personhood Emerged as the Next Stage of the Abortion Wars, N
EW YORKER (June
5, 2019), https://www.newyorker.com/news/our-columnists/how-fetal-personhood-emerged-as-the-
next-stage-of-the-abortion-wars.
430
See Wendy A. Bach, Prosecuting Poverty, Criminalizing Care, 60 WM. & MARY L. REV. 809
(2019) (documenting 124 cases in Tennessee from 2014 to 2016); Lynn M. Paltrow, Constitutional
Rights for the “Unborn” Would Force Women to Forfeit Theirs, M
S. (Apr. 15, 2021),
https://msmagazine.com/2021/04/15/abortion-constitutional-rights-unborn-fetus-14th-amendment-
womens-rights-pregnant/ (reporting more than 1,000 cases documented by the nonprofit
organization National Advocates for Pregnant Women from 2006-2020 nationwide); Grace Elizabeth
Howard, The Criminalization of Pregnancy: Rights, Discretion, and the Law 64–65, 68–70 (Oct.
2017) (Ph.D. dissertation, Rutgers University), https://rucore.libraries.rutgers.edu/rutgers-
lib/55493/ (documenting 182 cases in South Carolina, 501 cases in Alabama, and 99 cases in
Tennessee from 1973 to 2015). For more privileged women, this has not been a routine occurrence,
but if and when Roe v. Wade, 410 U.S. 113 (1973), falls, prosecutors in states with such laws will
have free rein to go after women who have miscarriages.
431
See MICHELE GOODWIN, POLICING THE WOMB: THE NEW RACE & CLASS POLITICS OF
REPRODUCTION (2019); DOROTHY E. ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION, AND
THE MEANING OF LIBERTY (1997); Bach, supra note 430; Priscilla A. Ocen, Birthing Injustice:
Pregnancy as a Status Offense, 85 G
EO. WASH. L. REV. (2017). For more privileged women, this has
not been a routine occurrence, but if Roe v. Wade (410 U.S. 113 (1973)) falls, prosecutors in states
with such laws will have free rein to go after women when they miscarry.
432
See, e.g., Emily T. Porschitz & Elizabeth A. Siler, Miscarriage in the Workplace: An
Authoethnography, 24 G
ENDER, WORK & ORG. 565, 573 (2017) (explaining that authors “never
considered revealing” their miscarriages at work);
Emily Kane Miller, Fighting the Silence Around
Miscarriage—With a Greeting Card,
DAILY BEAST (May 18, 2015, 5:15 AM),
https://www.thedailybeast.com/fighting-the-silence-around-miscarriagewith-a-greeting-card (“The
nasty hush that comes rushing in after a miscarriage blocks our path to the people we rely on in all
other aspects of life.”); Katy Lindemann, The 12-week Pregnancy Rule Makes Miscarriage Worse,
T
HE GUARDIAN (Oct. 7, 2019, 3:00 EDT),
https://www.theguardian.com/commentisfree/2019/oct/07/12-week-pregnancy-rule-miscarriage-
shame-failure (“Most [miscarriages] will be suffered in silence, because it’s considered so socially
unacceptable to reveal that you’re pregnant before 12 weeks – let alone that you were pregnant, but
now you’re not.”); Katherine Hobson, People Have Misconceptions About Miscarriage And That Can
Hurt, NPR (May 8, 2015, 9:00 AM), https://www.npr.org/sections/health-
shots/2015/05/08/404913568/people-have-misconceptions-about-miscarriage-and-that-hurts
(explaining that secrecy around miscarriage perpetuates myths and isolates women from support).
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58
of socio-legal dynamics, in turn creates additional barriers to obtaining
workplace protections from discrimination, necessary work
accommodations, and safe work working conditions. This section describes a
number of specific legal requirements and doctrines within employment
discrimination law that further frustrate legal relief for women who
experience miscarriage given the common practice of hiding the experience
or risk of miscarriage.
A. Retaliation
Title VII, the FMLA, and the ADA all prohibit retaliation for making
a claim or exercising protected rights under these statutes.
433
Courts
generally apply the same legal standards to retaliation claims under Title
VII and the ADA.
434
A standard formulation of the prima facie case for
retaliation requires the plaintiff to show “(1) ‘participation in a protected
activity’; (2) the defendant’s knowledge of the protected activity; (3) ‘an
adverse employment action’; and (4) ‘a causal connection between the
protected activity and the adverse employment action.’”
435
If plaintiff is able
to establish her prima facie case, the burden of production shifts to the
employer to introduce into the evidence a nonretaliatory reason for its action.
At that point, the plaintiff may still prevail by proving that purported reason
is a pretext for retaliation.
436
Although the FMLA is not a discrimination
statute, courts also generally use this framework to analyze retaliation
claims under the FMLA.
437
Under both the FMLA and ADA, engaging in
“protected activities” includes not just opposing discrimination or
participating in a formal legal action claiming discrimination, but also
asking for or receiving a FMLA leave or ADA accommodation.
438
433
42 U.S.C. § 2000e-3(a) (2018) (Title VII retaliation provision); 29 U.S.C. § 2615(a)(2) (FMLA
retaliation provision); 42 U.S.C. § 12203(a) (ADA retaliation provision). Courts generally apply the
same legal standards to retaliation claims under the ADA as they do under Title VII.
434
See Smith v. District of Columbia, 430 F.3d 450, 455 (2005) (collecting cases from eleven
other federal judicial circuits).
435
Kwan v. Andalex Grp., LLC, 737 F.3d 834, 844 (2d Cir. 2013).
436
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 179 (2d Cir. 2005).
437
Specifically, a plaintiff making an FMLA retaliation claim must demonstrate a right to leave
and that the employer had a discriminatory reason for denying reinstatement after the leave or
taking other adverse action. See G
LYNN, SULLIVAN & ARNOW-RICHMAN, supra note 43, at 787–86.
The courts generally apply Title VII proof structures to determine whether the requisite intent
exists. Id. Thus, retaliation claims brought on the basis of circumstantial evidence are assessed
under the McDonnell Douglas burden-shifting framework for Title VII claims. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 800–06 (1973). That is, to establish a prima facie case of FMLA
retaliation the employee must prove they: engaged in protected activity under the FMLA, suffered
an adverse employment action or decision, and show a causal connection between the protected
activity and the adverse employment action. See, e.g., Caldwell v. Clayton Cty. Sch. Dist., 604
Fed.App’x. 855, 860 (11th Cir. 2015). Thereafter, the burden of production shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the employment action at issue. If the
employer carries this burden of production, the burden shifts back to the employee to demonstrate
that the proffered reason is mere pretext for discrimination. Id.
438
See, e.g., Salemi v. Colorado Pub. Employees’ Ret. Ass’n, 747 Fed. Appx. 675, 700 (10th Cir.
2018) (“The taking of FMLA leave is a protected activity. . . .”).
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Proving causation is a significant hurdle
439
that has been made even
more difficult for plaintiffs since the Supreme Court’s 2013 decision in Univ.
of Texas Sw. Med. Ctr. v. Nassar.
440
In Nassar, the Supreme Court held that
retaliation claims under Title VII must be proven by but-for causation;
441
that is, plaintiffs must show not only that their protected activity was a
motiving factor leading to an adverse employment action,
442
but that the
unlawful retaliation would not have occurred but-for the protected
activity.
443
Prior to Nassar, circumstantial evidence in the form of temporal
proximity between the protected activity (i.e., asking for a light duty
assignment due to pregnancy under the ADA) and alleged retaliation could
establish the causation element of the plaintiff’s retaliation case. But since
Nassar, several courts have taken the position that temporal proximity,
alone, has little probative value, even at the prime facie stage of the
analysis.
444
Further, since Nassar was decided, courts have imported its holding
into FMLA retaliation cases,
445
even though the FMLA is a minimum labor
439
Alex B. Long, Retaliation Backlash, 93 WASH. L. REV. 715, 727 (2018); Nicole Buonocore
Porter, Ending Harassment by Starting with Retaliation, 71 S
TAN. L. REV. ONLINE 49, 54 (2018)
(collecting ADA retaliation cases).
440
Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013).
441
Id. at 362.
442
The “motivating factor” causation standard was first announced in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), and codified for Title VII by Congress in the Civil rights Act of 1991,
42 U.S.C. § 2000e-2(m) (2018).
443
Nassar, 570 U.S. at 362. The majority offered three justifications for its decision: First, the
ordinary meaning of the words “because of” of in Title VII’s antiretaliation provision is but-for
causation. Id. at 350 (citing Gross v. FBL Financial Servs., Inc., 577 U.S. 167, 176 (2009). Second,
when Congress amended the causation standard for Title VII via the Civil Rights Act of 1991 to be
the lesser “motivating factor” standard for Title VII claims, it left in place the words “because of” in
the antiretaliation provision of Title VII. Therefore, the lesser motivating factor causation standard
is not applicable to claims under the anti-retaliation provision. Id. at 360. Finally, the lesser
“motivating factor” causation standard could incentivize plaintiffs to file frivolous retaliation claims.
Id. at 358.
444
See GLYNN, SULLIVAN & ARNOW-RICHMAN, supra note 43, at 675; Long, supra note 439, at
736; Porter, supra note 439, at 846.
445
Specifically, in three federal circuits, to get past a motion for summary judgment, the
plaintiff must prove that asking for or taking an FMLA leave was a “determinative factor” or the
“but-for” cause of the alleged retaliation. See, e.g., Sharp v. Profitt, 674 Fed. Appx. 440, 451 (6th Cir.
2016); Nathan v. Great Lakes Water Auth., 992 F.3d 557, 571 (6th Cir. 2021); Massey-Diez v. Univ.
of Iowa Cmty. Med. Servs, Inc., 826 F.3d 1149, 1160 (8th Cir. 2016); Matamoros v. Broward Sheriff's
Off., 2 F.4th 1329, 1337 (11th Cir. 2021); Williams v. Verizon Washington D.C. Inc., 304 F. Supp. 3d
183, 190 (D.D.C. 2018).
There are district court decisions on both sides of the issue in the Fourth and Tenth Circuits,
though none of the decisions is published. Fourth Circuit: Compare Sigler v. Black River Electric
Coop., Inc., No. 20-2203, 2020 WL 9209285, at *2 (D. S.C. July 24, 2020) and Fry v. Rand
Construction, No. 17-cv-0878, 2018 WL 4031546, at * 7 (E.D. Va. Aug. 22, 2018) (adopting the “but
for” causation standard for FMLA retaliation claims), with Antekeier v. Lab. Corp. of Am., 17-CV-
786, 2018 WL 3647109, at *2 (E.D. Va. July 31, 2018) (adopting the “motivating factor” standard).
Tenth Circuit: Compare Montoya v. Retiree Health Care Auth., No. 18-CV-0578, 2019 WL 7596230,
at *8 (D.N.M. Nov. 19, 2019) and Kutrell Barnes v. COXCOM, LLC, No. 16-CV-764, 2018 WL 773990,
at *9 (N.D. Okla. Feb. 7, 2018) (adopting the “but for” causation standard for FMLA retaliation
claims), with Hayes v. Skywest Airlines, Inc., 15-CV-02015, 2017 WL 6550891, at *5 n.10 (D. Colo.
May 19, 2017) (adopting the “motivating factor” standard).
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standard statute, not an antidiscrimination statute,
446
and even though the
Department of Labor issued regulations reaffirming the lesser “motivating
factor” test for FMLA retaliation claims.
447
For example, in Kubik v. Cent.
Michigan Univ. Bd. of Trustees,
448
the Sixth Circuit affirmed a grant of
summary judgment for the plaintiff’s employer. Kubik was an assistant
tenure-track journalism professor for a public University.
449
The court
concluded that although the plaintiff had experienced adverse actions after
she took a family leave, she had not created a genuine issue of material fact
on her retaliation claim, because her employer had expressed concerns about
her scholarship prior to her leave.
450
This case demonstrates how the “but-
for” causation standard prevents plaintiffs from prevailing on retaliation
claims if they have had any prior issues in their employment. Other recent
FMLA cases similarly show plaintiffs not meeting courts’ stringent
standards for proving retaliation.
451
FMLA retaliation claims could become
Six federal circuits follow the more plaintiff-friendly test for FMLA retaliation cases that simply
assesses whether the FMLA-protected leave was a “negative factor” in an employment decision. See
Chase v. U.S. Postal Serv., 843 F.3d 553, 554 (1st Cir. 2016); Ameen v. Amphenol Printed Circuits,
Inc., 777 F.3d 63, 69 (1st Cir. 2015); Carrero–Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711,
718 (1st Cir. 2014); Egan v. Delaware River Port Auth., 851 F.3d 263, 273–74 (3d Cir. 2017);
Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333–35 (5th Cir. 2005); Olson v. United States
by & through Dep’t of Energy, 980 F.3d 1334, 1337–38 (9th Cir. 2020); cf. Woods v. START
Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 169 (2d Cir. 2017) (applying the motivating factor
test for FMLA retaliation claim, at least where the retaliatory action takes the form of outright
termination). However, in two of these circuits, the Second and Fifth, it seems that the question may
not be fully settled. In Geordeau v. City of Newton, 238 F. Supp.3d 179, 194–95 (D. Mass 2017), a
district court judge issued a detailed opinion challenging the reasoning of First Circuit appellate
court precedents and applying the “but-for” causation test, an exercise of real judicial chutzpah given
that the issue was settled by an appellate panel in that circuit. In the Fifth Circuit, although district
courts generally applied a mixed-motive standard even after Nassar, see, e.g., Mead v. Lattimore
Materials Co., No. 16-CV-0791, 2018 WL 807032, at *5 (N.D. Tex. Feb. 9, 2018) (subsequent history
omitted), the issue of whether Nassar must apply to FMLA retaliation claims is presently on appeal.
See Crankshaw v. City of Elgin, No. 18-CV-75, 2020 WL 889169 (W.D. Tex. Feb. 24, 2020), appeal
granted, No. 20-90022, 2020 WL 6277551 (5th Cir. 2020).
Finally, “the Seventh Circuit has not yet had occasion to weigh in on the question. Thus, the
motivating factor test still represents the ‘controlling law in the Seventh Circuit.’” See Haworth v.
Round Lake Area Sch., Cmty. Unit Sch. Dist. 116, No: 17 C 7038, 2019 WL 3080928, at *5 n.2 (N.D.
Ill. 2019) (citations omitted).
446
See Martin H. Malin, Interference with the Right to Leave Under the Family and Medical
Leave Act, 7 E
MPLOYEE RTS. & EMP. POLY J. 329, 334–35, 349–50 (2003) (arguing that the FMLA is
a minimum labor standard statute and that its antiretaliation provision is modeled on the National
Labor Relations Act’s antiretaliation provision, with rights that are much broader than a prohibition
on discrimination).
447
See Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights, 29
C.F.R. § 825.220 (2022). Note that under the FMLA, the “motivating factor” causation test is called
the “negative factor” test. Id.
448
Kubik v. Cent. Michigan Univ. Bd. of Trustees, 717 F. App’x 577 (6th Cir. 2017).
449
Id. at 579.
450
Id. at 585.
451
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1006 (10th Cir. 2011) (holding that
temporal proximity was insufficient to show causation); Chase v. United States Postal Serv., 843
F.3d 553, 558 (1st Cir. 2016) (holding that employer’s knowledge that plaintiff was on medical leave
was not sufficient to show retaliation was based on protected activity when employer was not aware
that medical leave was FMLA leave); Garrison v. Dolgencorp, LLC, 939 F.3d 937, 943 (8th Cir. 2019)
(holding that employer’s spreading rumors about plaintiff that she intended to quit was not an
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even more difficult to prove if more circuits decide to apply Nassar’s
requirement of but-for causation in Title VII retaliation cases to FMLA
cases.
Nassar has been subjected to criticism by employment law experts,
452
but its impact is particularly devastating for workers who have experienced
miscarriage or are at risk of a miscarriage. “Fear of retaliation is the leading
reason why people stay silent.”
453
And EEOC data suggest that retaliation
is rampant. In fiscal year 2020, 37,632 retaliation charges were filed with
the EEOC.
454
Retaliation remained the most frequently cited claim in
charges filed with the agency—accounting for a staggering 55.8 percent of
all charges filed—followed by disability, race, and sex.
455
If an employee feels deterred from requesting workplace
accommodations or leave under the PDA (Title VII),
456
ADA, or FMLA
because she is worried about her employer retaliating against her, the goals
of these statutes will not be realized. This is already a problem for all
employees these statutes are intended to protect. But for employees who
experience miscarriage, the lack of protection for retaliation has an
especially harsh bite, given the existing cultural barriers to even sharing
this information at all.
B. Notice without Privacy
The desire for privacy presents special problems for employees who
suffer miscarriages, as oftentimes, an employer does not even know the
employee or an employee’s family member is going through this significant
life event. This runs directly up against a basic requirement of all federal
antidiscrimination statutes: notice, or at least knowledge, of an employee’s
protected status. Under Title VII and other major federal employment
discrimination statutes, an employer typically must know the facts
underlying an employee’s claim for any statutory duties to exist. This
requirement can place the employee in a vulnerable position, as they risk
negative employment and/or social consequences from the potential
exposure of private health or family information.
An employee must share medical information about a miscarriage or
their risk of miscarriage (or the health condition of family members who
have had a miscarriage or are at risk of miscarriage) with their employer in
adverse action); Quinn v. St. Louis Cty., 653 F.3d 745, 754 (8th Cir. 2011) (holding that accusations
of lying, change of office, and exclusion from workshops were not adverse actions).
452
See Long, supra note 439; Michael J. Zimmer, Hiding the Statute in Plain View: University
of Texas Southwestern Medical Center v. Nassar, 14 N
EV. L. REV. 705 (2014).
453
See Deborah L. Brake, Retaliation, 90 MINN. L. REV. 18, 20 (2005).
454
See Charge Statistics (Charges Filed with EEOC) FY 1997 Through FY 2020, EEOC,
https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020 (last
visited Feb. 5, 2022).
455
Id. The EEOC does not report retaliation claims by basis of discrimination, so the data is
limited to showing charges filed under all statutes.
456
The Pregnancy Discrimination Act amended the definition of “sex” in Title VII. As such,
protections under the PDA are Title VII protections. See discussion supra Part II.A.
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order to receive protection from discrimination law, especially if the
employee needs an accommodation or a leave. Yet, a review of Title VII,
FMLA, and ADA demonstrates that privacy protections provided by these
statutes are weak or uncertain at best.
This section reviews how courts have analyzed issues of notice and
confidentiality of health information under Title VII, FMLA, and ADA,
demonstrating how the combination of mandatory notice without sufficient
privacy protections often renders the substantive protections intended by
these statutes illusory for employees affected by miscarriage.
1. Notice Requirements
a. Notice and Title VII
Title VII does not require that a plaintiff give her employer formal
notice of her protected status to be covered by the statute, because, in the
vast majority of discrimination cases, the plaintiff's membership is either
patent (race or gender), or is documented on the employee's personnel
record.
457
However, on this question, courts often distinguish pregnancy
discrimination claims from other types of discrimination claims, since
pregnancy is not always readily observable to others. Thus, courts have held
that in order to prove causation under the PDA, the employee bears the
burden of demonstrating that the employer had actual knowledge of her
pregnancy at the time that the adverse employment action was taken.
458
This is because courts “cannot presume that an employer most likely
practiced unlawful discrimination when it did not know that the plaintiff
even belonged to the protected class.”
459
Accordingly, courts have granted summary judgment to employers in
pregnancy discrimination cases where there is documentation that the
decision to take an adverse action against the employee predated the
employer’s knowledge of her pregnancy;
460
the employee hasn’t presented
evidence that the employer knew of her pregnancy;
461
or that those with
knowledge of the employee’s pregnancy were not the decision makers.
462
457
Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996).
458
Prebilich-Holland v. Gaylord Ent. Co., 297 F.3d 438, 444 (6th Cir. 2002); Geraci, 82 F.3d at
581.
459
Geraci. 82 at 581.
460
Prebilich-Holland 297 F.3d at 444 (noting that manager made termination decision four days
before learning that employee was pregnant); Forde v. Beth Israel Med. Ctr., 546 F. Supp. 2d 142,
151 (S.D.N.Y. 2008) (finding that complaints about employee’s job performance started before she
announced her pregnancy).
461
Lambert v. McCann Erickson, 543 F. Supp. 2d 265, 277–78 (S.D.N.Y. 2008) (“Plaintiff must
also be able to point to some admissible evidence from which a rational jury could infer that the
employer knew that the plaintiff was pregnant.”); Weiner v. Flyer Pub. Co., 945 F. Supp. 1559, 1563
(S.D. Fla. 1996) (granting summary judgment to employer because plaintiff “failed to introduce any
evidence that The Flyer Publishing Company fired her because she was pregnant and miscarried”).
462
Lambert, 543 F. Supp. At 277–78 (internal citations omitted) (stating that plaintiff cannot
rely on coworkers’ knowledge of her pregnancy but “was obliged to offer evidence indicating that
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b. Notice and the ADA
For ADA claims based on failure to accommodate, the statute states
that discrimination based on disability includes “not making reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or employee.”
463
The statute includes the term “known,” indicating that some notice is
required. Courts have interpreted this language to mean that “[o]nly after
the employee has satisfied this burden and the employer fails to provide that
accommodation can the employee prevail on a claim that her employer has
discriminated against her.”
464
Thus, the ADA requires an individual who has
experienced a miscarriage or is at risk of a miscarriage, to disclose private
health information. As discussed, below, the ADA includes a confidentiality
provision to limit the disclosure of health information once it has been
obtained, but the scope of information protected is quite narrow.
465
c. Notice and the FMLA
Under FMLA regulations, “[a]n employee must provide the employer
at least 30 days advance notice before FMLA leave is to begin if the need for
the leave is foreseeable” and “[i]f 30 days notice is not practicable, such as
because of a lack of knowledge of approximately when leave will be required
to begin, a change in circumstances, or a medical emergency, notice must be
given as soon as practicable.”
466
The regulations define “as soon as
practicable” as “the same day or the next business day” after employee is
aware.
467
The required minimum notice can be verbal and must be “sufficient
to make the employer aware that the employee needs FMLA–qualifying
leave, and the anticipated timing and duration of the leave.”
468
The first time
an employee seeks FMLA leave, they “need not expressly assert rights under
the FMLA or even mention the FMLA.”
469
However, “[w]hen an employee
seeks leave due to a FMLA-qualifying reason, for which the employer has
previously provided FMLA-protected leave, the employee must specifically
persons who actually participated in her termination decision” knew she was pregnant); Prebilich-
Holland v297 F.3d at 444 (determining that plaintiff informing two coworkers of her pregnancy was
not significant when there was no evidence “that the decision-makers at WSM had actual knowledge
of her pregnancy at the time they made the decision to discharge her”).
463
42 U.S.C. § 12112 (2018).
464
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1364 (11
th
Cir. 1999); Matuska
Tp. v. Hinckley, 56 F. Supp.2d 906, 917 (1999) (holding an employee who fails to inform his employer
of the specific limitations that he experienced as a result of his physical and mental impairments
cannot establish that the employer knew or had reason to know of his disability, and therefore the
employer had no duty to provide a reasonable accommodation).
465
See discussion infra Part II.B.
466
29 C.F.R. § 825.302(a) (2020).
467
29 C.F.R. § 825.302(b) (2020).
468
29 C.F.R. § 825.302(c) (2020).
469
Id.
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reference the qualifying reason for leave or the need for FMLA leave.”
470
Additionally,
the employer should inquire further of the employee if it is
necessary to have more information about whether FMLA leave is
being sought by the employee, and obtain the necessary details of
the leave to be taken. In the case of medical conditions, the
employer may find it necessary to inquire further to determine if
the leave is because of a serious health condition and may request
medical certification to support the need for such leave.
471
When an employer asks questions, “[a]n employee has an obligation
to respond to an employer’s questions designed to determine whether an
absence is potentially FMLA-qualifying” and “[f]ailure to respond to
reasonable employer inquiries regarding the leave request may result in
denial of FMLA protection if the employer is unable to determine whether
the leave is FMLA-qualifying.”
472
An employer may use their own policy that
could require the reason for the leave be in writing or the notice to submitted
to a specific employee.
473
One federal circuit has interpreted these regulations as requiring
women requesting FMLA based on pregnancy to disclose their
pregnancies,
474
even though the relevant part of the regulation suggests that
this should not be mandatory.
475
Even in circuits that do not require this, an
employee will have to disclose her miscarriage if her employer does not
accept her notice at face value and seeks to determine if she qualified for
FMLA leave.
476
2. Privacy “Protections
a. Privacy and Title VII
There are no statutory provisions in Title VII protecting employees
from disclosure of their private health information, even though receiving
equal accommodations as other employees, such as light duty assignments,
will require an employee to share her medical status with her employer in
order to be protected by Title VII. The same lack of protection would exist,
for example, if an employee who is an intended parent suffers depression
470
Id.
471
Id.
472
Id.
473
29 C.F.R. § 825.302(d) (2020).
474
See, e.g., Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 681 (11th Cir. 2018) (citing
§ 825.302(c)) (stating that “notice must be ‘sufficient to make the employer aware that the employee
needs FMLA-qualifying leave, and the anticipated timing and duration of the leave’ and, if
applicable, include ‘that the employee is pregnant’”).
475
Specifically, the regulation states “such information may include that a condition renders
the employee unable to perform the functions of the job; that the employee is pregnant or has been
hospitalized overnight[.]”29 C.F.R. § 825.302(c) (2020) (emphasis added). This language seems more
like an example of a way to give notice than a mandatory disclosure of pregnancy.
476
Id.
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after the miscarriage of a partner or surrogate and seeks temporary leave or
other accommodations similar to other employees in their workplace who
have suffered from depression. That is, Title VII affords no privacy to
employees affected by miscarriage even though they will need to inform their
employer of the miscarriage or related health conditions in order to receive
protections under the statute.
b. Privacy and the FMLA
Under the FMLA, employers must maintain employee’s privacy with
regard to medical information collected for the purposes of granting leave.
The applicable regulations state, in relevant part:
[M]edical histories of employees or employees’ family members,
created for purposes of FMLA, shall be maintained as confidential
medical records in separate files/records from the usual personnel
files, and if ADA is also applicable, such records shall be maintained
in conformance with ADA confidentiality requirements, except
that: (1) Supervisors and managers may be informed regarding
necessary restrictions on the work or duties of an employee and
necessary accommodations. . . .
477
Although several courts have stated that it is “unsettled law”
whether the FMLA creates a private cause of action for breach of
confidentiality, no court has yet held that such a claim is impermissible.
478
Several courts have avoided the question by dismissing claims on other
grounds or not addressing the issue because it was not raised by the
defendant.
479
Some plaintiffs have successfully brought FMLA interference
claims based on disclosure of confidential information.
In Mahran v. Benderson Dev. Co., LLC, the court held that the FMLA
did create private right of action for violation of confidentiality because “[t]he
confidentiality of any medical information that plaintiff submitted . . . when
applying for leave is one of the rights protected under the FMLA” and “[t]he
FMLA permits private civil actions to enforce its provisions.”
480
The
plaintiff’s claim survived the defendant’s motion to dismiss because his
employer “knew or should have known about the confidentiality of any
medical information that it reviewed when assessing plaintiff’s leave
application, but chose to disclose it anyway” which “caused him mental and
emotional aguish.”
481
477
Recordkeeping Requirements, 29 C.F.R. § 825.500 (2022).
478
See, e.g., Ekugwum v. City of Jackson, Miss., No. 09CV48, 2010 WL 1490247, at *2 (S.D.
Miss. Apr. 13, 2010) (stating it is not settled whether FMLA creates a private cause of action for
breach of confidentiality); Walker v. Gambrell, 647 F. Supp. 2d 529, 539 n. 5 (D. Md. 2009) (finding
that “[i]t is not settled whether this provision gives rise to a private right of action for disclosure”).
479
See, e.g., Johnson v. Moundsvista, Inc., No. CIV. 01-915, 2002 WL 2007833, at *7 (D. Minn.
Aug. 28, 2002) (dismissing claim without deciding whether or not FMLA allows for private cause of
action for improper disclosure).
480
No. 10-CV-715A, 2011 WL 1467368, at *4 (W.D.N.Y. Apr. 18, 2011).
481
Id.
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In Holtrey v. Collier Cty. Bd. of Cty. Commissioners, the plaintiff
claimed a breach of confidentiality after his employer disclosed information
from his FMLA leave request about a “serious health condition with his
genito-urinary system” to eight of the plaintiff’s coworkers and subordinates
in a staff meeting which resulted in those employees “making jokes and
obscene gestures about [his] condition.”
482
The court noted that the law is
not settled as to the whether the FMLA allows a private right of action for
disclosure, but “limit[ed] its review to the sufficiency of the . . . Complaint”
because the defendant did not challenge the claim on these grounds.
483
The
plaintiff’s claim survived a motion to dismiss as the court found that the
“[p]laintiff has sufficiently alleged a right of confidentiality and that
Defendant breached that right when it disclosed his protected medical
information during a staff meeting and without his permission.”
484
However, plaintiffs are not consistently successful in their claims for
breach of privacy under the FMLA. For example, in Dodge v. Trustees of Nat’l
Gallery of Art,
485
the plaintiff obtained FMLA leave to care for his son, who
was diagnosed with HIV.
486
Subsequently, the plaintiff refused to work on a
mandatory overtime assignment, and the employer released the plaintiff’s
son’s medical records to his supervisor in order to allow the supervisor to
decide whether the plaintiff’s refusal to work was appropriate.
487
The court
found that this release of records did not violate the FMLA’s privacy
requirements.
488
Since the defendant in this case followed these regulations,
no FMLA privacy violation was found.
c. Privacy and the ADA
An employer is required to keep all employee medical disclosures and
examination results related to disability leave or accommodations
confidential under the ADA.
489
Information obtained must be “maintained
on separate forms and in separate medical files and is treated as a
confidential medical record.”
490
The EEOC has interpreted this requirement
broadly to encompass more medical information than is protected by federal
law, commonly known as “HIPAA.”
491
482
No. 16-CV-00034, 2017 WL 119649, at *1 (M.D. Fla. Jan. 12, 2017).
483
Id. at *2.
484
Id.
485
326 F. Supp. 2d 1 (D.D.C. 2004).
486
Id. at 4.
487
Id.
488
Id. at 14.
489
See Americans with Disabilities Act, 42 U.S.C. § 12112(d)(3)(B); §12112(d)(4)(C); see also The
ADA: Your Employment Rights as an Individual With a Disability, U.S.
EQUAL EMP. OPPORTUNITY
COMMN, https://www.eeoc.gov/eeoc/publications/ada18.cfm (last visited Feb. 5, 2022).
490
42 U.S.C. § 12112(d)(4)(C) (2016).
491
See Health Insurance Portability and Accountability Act Of 1996, Pub. L. 104-191, 110 Stat.
1936 (1996). HIPAA requires that the privacy and security of certain health information is protected.
Id. To fulfill this requirement, the federal Department of Health and Human Services (HHS)
published the HIPAA Privacy Rule and the HIPAA Security Rule. The Privacy Rule, or “Standards
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However, there are exceptions to these confidentiality requirements.
According to the ADA, “(i) supervisors and managers may be informed
regarding necessary restrictions on the work or duties of the employee and
necessary accommodations.”
492
Additionally, courts have interpreted the
ADA confidentiality provisions such that they do not attach unless the
medical information was received as a result of an employer-initiated
medical inquiry or exam. This means that information provided to employers
either voluntarily or as the result of a non-medical inquiry is not confidential
under the ADA and may be disclosed by the employer. Under this rule, courts
have decided that health information was not confidential even where it
seemed that the employer solicited the information.
For example, the plaintiff in EEOC v. Thrivent Financial for
Lutherans self-disclosed a problem with migraines in an email chain with
management after a manager asked the employee to give him a call so he
could determine what was going on, given the employee’s absence over a
number of days.
493
When the employee subsequently listed the manager as
a reference for his next job, the manager told the new company that the
plaintiff suffered from migraines.
494
The Seventh Circuit ruled that since the
employee self-disclosed the information in response to a general inquiry,
rather than a specific medical inquiry, the employer was not obligated to
keep it confidential.
495
When an employee is absent from work or appears ill
on the job, employers sometimes ask general questions such as “is everything
okay?” or perhaps less supportively, “what is wrong with you?” As Thrivent
demonstrates, if an employee answers and shares private health
information, it may not be protected.
for Privacy of Individually Identifiable Health Information,” establishes national standards for the
protection of certain health information. See 45 C.F.R. §§ 160, 162, 164 (2022); O
FFICE FOR CIVIL
RTS., U.S. DEPT HEALTH AND HUM. SERVS., HIPAA ADMINISTRATIVE SIMPLIFICATION: REGULATION
TEXT (2013),
https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/administrative/combined/hipaa-
simplification-201303.pdf. The Security Rule, or “Standards for the Protection of Electronic
Protected Health Information,” establishes a national set of security standards for protecting certain
health information that is held or transferred in electronic form. 45 C.F.R. §§ 160, 164 (2022). The
Security Rule operationalizes the protections contained in the Privacy Rule by addressing the
technical and non-technical safeguards that organizations called “covered entities” must put in place
to secure individuals’ electronic protected health information or “e-PHI.” Id. Within HHS, the Office
for Civil Rights has responsibility for enforcing the Privacy and Security Rules with voluntary
compliance activities and civil money penalties. For a summary of key elements of HIPAA, including
who is covered, what information is protected, and what safeguards must be in place to ensure
appropriate protection of electronic protected health information, see Health Information Privacy,
HHS.gov, https://www.hhs.gov/hipaa/index.html (last visited Feb. 1, 2022).
492
42 U.S.C. § 12112(d)(3)(B)(i)-(iii). Additionally, “ (ii) first aid and safety personnel may be
informed, when appropriate, if the disability might require emergency treatment; and (iii)
government officials investigating compliance with this provision of the ADA shall be provided
relevant information upon request.” Id.
493
See EEOC. v. Thrivent Financial for Lutherans, 700 F.3d 1044, 1046 (7th Cir. 2012).
494
Id. at 1047–50.
495
Id.; see also Perez v. Denver Fire Dep’t, 243 F. Supp. 1186, 1192 (2017) (“[A]n employee’s
voluntary disclosure of medical information outside the context of an authorized employment-related
medical examination or inquiry is not protected under § 12112(d) [of the ADA]”).
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In an analogous case dealing with disclosures (albeit also brought
under the Privacy Act and the FMLA), the plaintiff in Walker v. Gambrell
brought suit claiming that her employer’s disclosure of her miscarriage to
coworkers violated the Privacy Act,
496
the ADA, and the FMLA.
497
The court
disagreed, and stated that FMLA/ADA confidentiality provisions only cover
employee medical information that is obtained by an employer after a
medical inquiry.
498
In this instance, the plaintiff’s husband had called one of
her coworkers on the phone to ask her to report the plaintiff’s absence and
cause for it to management.
499
The plaintiff was upset because she felt her
personal information had been disclosed to a large number of coworkers
without her permission.
500
The court in Rodgers v. Rensselaer Cty. Sheriff’s Dep’t,
501
considered
whether an employer violated an employee’s Fourteenth Amendment right
to privacy when the employer obtained the employee’s medical records on
depression without his consent.
502
The employee filed suit alleging that
obtaining his medical records in this manner violated both the Constitution
and the ADA. The court, however, ruled that “violations of his Fourteenth
Amendment right to privacy . . . are outside the scope of the protections
afforded by the ADA.”
503
The plaintiff only pleaded the case as a Fourteenth
Amendment claim.
504
Perhaps of some small comfort, the ADA prohibits employers from
asking invasive questions in the application process about pregnancy and
previous miscarriages,
505
and, at least on the front end, when applying for a
position, it appears that the ADA may protect applicants when they are
denied employment for refusing to answer invasive questions regarding
pregnancy and miscarriage. For example, in Garlitz v. Alpena Reg’l Med.
Ctr., the court denied summary judgment on an ADA discrimination claim
for an employer that rescinded its employment offer after the plaintiff
complained about and refused “to answer questions regarding, inter alia,
496
The Privacy Act establishes regulations governing federal agency collection, use, and
dissemination of individual information. The Privacy Act allows plaintiffs to bring suit when an
agency's disclosures violate the Act, were committed willfully or intentionally, and adversely affected
the plaintiff. See also 5 U.S.C. § 552a(g)(1)(D), (g)(4).
497
Walker v. Gambrell, 647 F. Supp. 2d 529 (D. Md. 2009).
498
Id. at 540–41.
499
Id.
500
See generally id.
501
2015 WL 4404788 (N.D.N.Y. July 17, 2015).
502
This occurred when “Defendants Dinan and Young . . . authorized as RCJ nurses to access
the hospital's electronic medical record system in order to retrieve inmate’s records . . . exceeded
their authority when they accessed Plaintiff's records.” Rodgers v. Rensselaer Cnty. Sheriff’s Dep’t,
No. 14-CV-01162, 2015 WL 4404788, at *1 (N.D.N.Y. July 17, 2015). The statute then provides some
examples of discrimination. It also states: “(1) The prohibition against discrimination as referred to
in subsection (a) of this section shall include medical examinations and inquiries.” Id.
503
Id. at *8.
504
Id.
505
The ADA provides: “No covered entity shall discriminate against a qualified individual on
the basis of disability in regard to job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” See 42 U.S.C.A. § 12112(a).
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whether she was pregnant, had ever been pregnant, or was planning to
become pregnant; whether she had ever had an abortion, miscarriage, or live
birth, and if so, how many times; and whether she was on birth control and,
if so, what type.”
506
However, the overall lesson from an analysis of the statute and cases
is that the scope of information protected by the ADA’s confidentiality
provision is narrower than what first meets the eye. Employers can freely
disclose health information without violating the ADA unless the
information was obtained from the employee in response to a request by the
employer for medical information, such as a request for a doctor’s note to
support a reasonable accommodation request, or from an employer-
mandated physical fitness for duty exam.
IV.
A WAY FORWARD: THE PREGNANT WORKERS FAIRNESS ACT IS NOT
ENOUGH
A. The Pregnant Workers Fairness Act
To provide more robust protection to pregnant workers, thirty the
states and many cities have enacted laws called “pregnant workers fairness
acts” that require reasonable accommodations for pregnant workers, without
the need to identify any comparators.
507
A federal version of this law, the
Pregnant Workers Fairness Act (PWFA), was first introduced in 2012 by
Congressman Jerrold Nadler (D-NY)
508
and has been reintroduced in the
House almost every legislative session since then.
509
The federal PWFA
would solidify the groundwork laid by the states and create a much-needed
uniform federal standard. The PWFA requires employers covered by Title
VII to provide reasonable accommodations to employees for pregnancy,
childbirth, and related medical conditions, unless such accommodation
would cause an undue hardship for the employer.
510
Modeled largely on the
corresponding definition in the ADA, a qualified employee under the PWFA
is “an employee or applicant who, with or without reasonable
accommodation, can perform the essential functions of the position, with
specified exceptions.”
511
Even during the Trump Presidency, the PWFA had
506
Garlitz v. Alpena Reg’l Med. Ctr., 834 F. Supp. 2d 668, 679 (E.D. Mich. 2011).
507
State Pregnant Workers Fairness Laws, A BETTER BALANCE (last updated Nov. 29, 2021),
https://www.abetterbalance.org/resources/pregnant-worker-fairness-legislative-successes/
(displaying an interactive map with information on what protections each of the thirty states and
five municipalities provide).
508
See H.R. 5647, 112th Cong. (2012). For background on the PWFA, see Alisha Haridasani
Gupta and Alexandra E. Petri, There’s a New Pregnancy Discrimination Bill in the House. This Time
It Might Pass, N.Y.
TIMES, Mar. 4, 2021, https://www.nytimes.com/2021/03/04/us/pregnancy-
discrimination-congress-women.html.
509
See, e.g., H.R. 2694 (introduced May 14, 2019).
510
Id.
511
Id. Specifically, the PWFA would make it an unlawful employment practice to, among other
things: (1) fail to make reasonable accommodations to known limitations of such employees unless
the accommodation would impose an undue hardship on an entity's business operation; (2) require
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significant bipartisan support.
512
Congressman Nadler reintroduced the
PWFA in the House in 2021
513
and it passed in the House in May 2021 by a
329-73 vote
514
but fizzled in the Senate.
515
The PWFA would resolve much of the uncertainty generated by the
Court’s decision in Young v. UPS.
516
Under Young, pregnant workers must
discover what accommodations an employer has given to others, which is
often difficult, even in the context of litigation where there is a right to
discovery.
517
Secondly, the employer only must provide accommodations
similar to what it has offered in similar situations. Therefore, in essence,
there is presently no affirmative duty to accommodate a pregnant worker
under the PDA even if it is possible. The PWFA would make it crystal clear
that employers are obligated to make reasonable accommodation for
pregnancy and related conditions, including miscarriage.
Passing the PWFA would go a long way toward addressing the
systemic injustices experienced by workers who are affected by miscarriage.
But it would not fully address the gaps in federal law that permit workers to
suffer silently, experience discrimination, lose desired pregnancies, or lose
income, among other harms when they are affected by a miscarriage,
especially low-income workers in physically demanding jobs. Patching the
holes in the PDA is not enough. As the next sections discuss, enhanced
antiretaliation and privacy protections, guaranteeing a right to paid sick
leave for American workers, and establishing occupational safety standards
that would reduce the risk of miscarriage are also necessary to address the
unique vulnerabilities facing workers affected by miscarriage
a qualified employee affected by such condition to accept an accommodation other than any
reasonable accommodation arrived at through an interactive process; (3) deny employment
opportunities based on the need of the entity to make such reasonable accommodations to a qualified
employee; (4) require such employees to take paid or unpaid leave if another reasonable
accommodation can be provided; or (5) take adverse action in terms, conditions, or privileges of
employment against a qualified employee requesting or using such reasonable accommodations. Id.
512
Roll Call: Bill Number H.R. 2694, CLERK (Sept. 17, 2020, 2:24 PM),
https://clerk.house.gov/Votes/2020195 (reporting all Democrats and 103 Republicans voting yea,
compared to only 72 Republicans and 1 Independent voting nay).
513
H.R. 1065, 117th Cong. (2021).
514
See Summary: H.R.1065 — 117th Congress (2021-2022),
https://www.congress.gov/bill/117th-congress/house-bill/1065?r=2&s=1 (last visited Feb. 21, 2022).
Separately, a group of Republican representatives sponsored a watered-down version of the bill. See
Pregnancy Discrimination Amendment Act, H.R. 3229, 117th Cong. (2021). An identical version this
bill introduced in 2019 was criticized by the National Women’s Law Center as “one step forward and
two steps back for pregnant workers,” because the Republican version still limits accommodations
to those received by non-pregnant workers “in work that is performed under similar working
conditions,” rather than establishing a right to an accommodation for pregnancy outright like the
PWFA. See N
ATL WOMENS LAW CTR., THE PREGNANCY DISCRIMINATION AMENDMENT ACT: ONE
STEP FORWARD AND TWO STEPS BACK FOR PREGNANT WORKERS (Oct. 2019), https://nwlc.org/wp-
content/uploads/2019/10/PDAA-One-Step-Forward-Two-Steps-Back-2019-v5.pdf.
515
See Summary: S.1486 — 117th Congress (2021-2022), https://www.congress.gov/bill/117th-
congress/senate-bill/1486 (last visited Feb. 21, 2022) (showing that no action has been taken on the
bill since placing it on the Senate Legislative Calendar on September 30, 2021).
516
See supra Part II.A.2.
517
See notes 118–124 and accompanying text. Of note, even the EEOC with its highly
experienced lawyers was not able to successfully employ civil discovery to generate comparative
evidence in the case discussed, supra.
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B. Enhanced Antiretaliation and Privacy Protections
Many women and people who miscarry do not feel comfortable
sharing their pregnancy status and especially miscarriages with employers,
given the prevailing stigma many attach to pregnancy, disability, and
women’s bodies and sexuality more generally.
518
This silencing is
particularly acute for the most vulnerable workers, as outing oneself comes
with a risk of workplace retaliation,
519
including job loss or even prosecution
for harming a fetus,
520
for which the law provides little protection.
521
Yet the
notice requirements of Title VII, the ADA, and FMLA require workers to
provide notice in order to be protected by these federal employment statutes,
with weak or nonexistent privacy protections for shared health
information.
522
This mutually reinforcing dynamic of cultural taboo and
legally coerced invisibility and silence mean, in practice, that employees
affected by miscarriage are unlikely to even pass “go.” Employment law
functions, in a sense, as a legally constructed closet for individuals who
experience miscarriage, who may be at an increased risk of a miscarriage, or
who have family members they must care for in these circumstances.
In order for employees to even have an opportunity to access the
protections intended by Congress when it enacted the PDA, ADA, FMLA,
and OSH Act when affected by the life disrupting event of miscarriage, there
must be enhanced privacy and antiretaliation provisions. Such reforms could
be enacted by Congress via the legislative process or through judicial
interpretations consistent with the clear and broad protective purpose of
these statute, as indicated by both Congress and the EEOC.
Let’s start with antiretaliation. As expert commentators have
already argued, Supreme Court’s 2013 decision in Univ. of Texas Sw. Med.
Ctr. v. Nassar,
523
increasing plaintiffs’ burden of proof for retaliation claims
under Title VII, was wrongly decided, as the “but for” sole causation
standard announced by the Court is at odds with the plain language of the
statute.
524
Contrary to the majority’s interpretation, Congress clearly
indicated in the plain language of the Civil Rights Act of 1991 that the
standard of proof for all “unlawful practices” under Title VII, including
retaliation, is the “motivating factor” standard.
525
Congress must step in to
overturn Nassar’s unjustified interpretation of the Title VII (and thus of the
PDA) that makes challenging discrimination in the workplace more difficult.
But short of that, there are still other ways to limit and contain the
518
See supra notes 417–432 and accompanying text.
519
See discussion Part III.A., supra.
520
See notes 429–431 supra and accompanying text.
521
See discussion Part II, supra.
522
See Part III.B. supra.
523
570 U.S. 338 (2013).
524
See Zimmer, supra note 452, at 712–13.
525
Id.; see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 371–72 (2013) (Ginsburg,
J., dissenting).
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unjustified and unjust impact of the Nassar decision, starting with the
FMLA.
It is alarming how many lower federal courts have imported the
Supreme Court’s flawed construction of the causation standard for Title VII
retaliation claims into the FMLA,
526
an entirely different statute with a
different structure, purpose, and scheme. The FMLA is not even an
antidiscrimination statute. It is a minimum labor standard providing for
entitlements to unpaid leave for a minimum period of time for the birth or
adoption of a child or a covered employee’s own or his qualifying family
member’s serious health condition.
527
The FMLA’s “antiretaliation”
provision is modeled on the National Labor Relations Act’s
528
antiretaliation
provision and is different in language and structure from Title VII’s
antiretaliation provision.
529
Indeed, the FMLA does not even use the words
“retaliation.” Rather, the statute speaks of an employer’s “interference” with
an employee’s exercise of rights protected by the FMLA and “interference”
with proceedings, such filing a charge or suit for violation of FMLA rights.
530
As such, there is no basis for courts to use Nassar’s stringent “but for”
causation standard when analyzing FMLA retaliation claims. Indeed, there
is no basis for courts to require proof of discriminatory intent to establish a
claim of interference under the FMLA at all. Some courts have established
a distinction between an outright denial of FMLA leave rights ex ante from
an adverse employment action that occurs after an employee exercises
FMLA rights.
531
Such courts categorize the former scenario as FMLA
interference, which does not require proof of intent to discriminate and the
latter scenario as “retaliation,” which does.
532
But even this slightly more
generous interpretation is not supported by the plain language of the
statute.
533
Discrimination is a foreign concept under the FMLA. Yet courts
have held that once an employee takes a protected FMLA leave (or is even
just approved for a leave), any adverse employment action that occurs is a
discrimination claim requiring proof of intent to retaliate for exercising
FMLA rights.
534
And then many courts have, in turn, applied Nassar’s “but-
526
See notes 445–451 and accompanying text.
527
See notes 242–245 and accompanying text.
528
29 U.S.C. § 158(a)(1). “Congress passed the National Labor Relations Act in 1935 to
encourage collective bargaining” (i.e., unionization) and “to curtail certain private sector labor and
management practices, which can harm the general welfare of workers, businesses and the U.S.
economy.” The Law, N
ATL LAB. RELATIONS BD. https://www.nlrb.gov/about-nlrb/rights-we-
protect/the-
law#:~:text=Congress%20enacted%20the%20National%20Labor,businesses%20and%20the%20U.S
.%20economy (last visited Feb. 22, 2022).
529
See Malin, supra note 446, at 349.
530
29 U.S.C. § 2615(a).
531
See, e.g., Goelzer v. Sheboygan Co. Wisc., 604 F.3d 987, 995(10th Cir. 2010); Kauffman v.
Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005); Malin, supra note 446, at 358–61 (collecting
and discussing cases).
532
Id.
533
Id.
534
See Malin, supra note 446, at 358–61. Other courts have drawn the line between outright
denials of protected leave and terminations while on protected leave, on the one hand (categorized
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73
for” sole causation standard to analyze whether the employer intended to
“retaliate” under the FMLA. Which means, in practice, that when a woman
is fired while out on FMLA leave due to pregnancy complications such as
miscarriage or being ordered on bed rest to reduce the risk of a miscarriage
(or if an employee is terminated after taking a leave to care for a family
member affected in these ways), they must prove that the termination was
solely because they exercised their rights under the FMLA. That is a heavy
if not impossible burden given that most employees do not have perfect
employment records.
In sum, whether the adverse employment action occurs in response
to an employees’ request for a FMLA leave or takes place after the employee
is granted and takes an FMLA leave, and whether the adverse employment
action is an outright denial of leave, termination while on leave, or some
lesser action, intent is simply not properly an element of a claim of
interference under the FMLA.
535
Under this framework, the burden of
persuasion should be on the defendant to show that the reason for an adverse
employment action around the time of a requested, approved, or completed
FMLA leave is unrelated to the request for FMLA leave or exercise of an
FMLA-protected right.
536
And if courts were to properly analyze the FMLA
retaliation claims in this manner, which is consistent with Congress’s intent
and the plain language of the statute, Nassar would be wholly irrelevant to
retaliation claims under the FMLA. However, if courts are to persist in
improperly constructing the FMLA as an antidiscrimination statute, and to
equate FMLA interference with Title VII retaliation, they should at least
evaluate FMLA “retaliation” claims under the less onerous, pre-Nassar
“motivating factor” causation standard.
And finally (and more broadly) with regard to retaliation, there are
common sense reasons to believe employees who claim they are victims of
retaliation for exercising their rights to leave or work accommodations under
the PDA, FMLA, and ADA—and thus not to place additional hurdles in their
way when they claim retaliation (or, in the case of the FMLA, interference)
under these statutes. This is because workplace leave and alternative work
arrangements are perceived as (and can be) disruptive to employers’ day-to-
day operations and bottom line. In contrast, when an employee complains
as FMLA interference) and lesser adverse employment actions such as demoting an employee while
on leave (categorized as FMLA “retaliation”). Id. Neither of these distinctions is supported by the
plain language or legislative history of the FMLA. Id.
535
An example of this correct approach can be seen in Gordon v. United States Capitol Police,
778 F.3d 158 (D.C. Cir. 2015), which held that “an employer action with a reasonable tendency to
‘interfere with, restrain, or deny’ the ‘exercise of or attempt to exercise’ an FMLA right may give rise
to a valid interference claim under § 2615(a)(1) even where the action fails to actually prevent such
exercise or attempt.” Id. at 165.
536
Rachel Arnow has made a similar proposal that would apply in a narrower set of
circumstances. See Rachel Arnow-Richman, Public Law and Private Process: Toward an Incentivized
Organizational Justice Model of Equal Employment Quality for Caregivers, 2007 U
TAH L. REV. 25,
57 (arguing for “a judicially created burden shift on proof of substantive violations of the FMLA and
Title VII in cases where employers fail to engage in a good-faith process [to consider an employee’s
request] and the plaintiff can demonstrate a prima facie case of retaliation or discriminatory failure
to accommodate”).
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about disparate treatment under Title VII or the ADA, that is, when an
employee is asserting a simple right to nondiscrimination, and then,
subsequently, something bad happens to them at work, it may be more
reasonable to give the employer the benefit of the doubt and require the
employee to bring forth strong evidence connecting the adverse employment
action to their complaints of discrimination. After all, bad things happen to
employees for legitimate and illegitimate reasons unrelated to illegal
discrimination all the time. In contrast, being demoted or losing a job after
asking for or receiving a leave or workplace accommodation for a pregnancy
related complication, serious health condition, or disability is inherently
suspect. Therefore, when an employee is seeking to vindicate their right to
leave or accommodations under the PDA, FMLA, or ADA, and claims
retaliation, it is not appropriate to require that she establish that her
protected activity was the “but-for” cause of retaliation or interference by the
employer just to have a jury consider her claim.
Admittedly, the typical employee is not going to consider evidentiary
standards or burdens of proof when deciding whether to ask for an FMLA
leave or workplace accommodation while experiencing a miscarriage (or
facing an increased risk of miscarriage). Yet the systemic impact of making
retaliation claims so hard to win is that employers can deny leave or
accommodations or punish employees for exercising or attempting to
exercise their rights without consequences, which creates a space for this
behavior to flourish. This frustrates Congress’s intent to broadly protect
individuals from discrimination in passing the PDA, FMLA, and ADA. But
it is doubly problematic for employees who experience miscarriage, given the
existing culture of secrecy surrounding miscarriage. For individuals who
experience miscarriage, in order to be able to come out of the shadows,
federal antiretaliation provisions must be strengthened.
For the same reasons, employers must have a clear duty to keep
private health information confidential when an employee shares this
information pursuant to a request for a leave or workplace accommodation
due to a miscarriage under the PDA, FMLA, or ADA. Ideally, there must be
substantive legal consequences for such breaches independent of an
employee’s remedies for discrimination under these statutes, so that there is
a meaningful incentive to protect employee health information in its own
right.
537
Toward that end, a private cause of action for breaching
confidentiality should be established under all of these statutes, including
Title VII, which presently has no privacy provision at all. It may be that
courts will not be willing to read such a provision into Title VII (and hence
the PDA) absent further elaboration by Congress. In that case, a
confidentiality provision, with a corresponding right to sue for a breach,
should be added to the PWFA. The PWFA’s proposed amendment to the
537
Some courts, as discussed supra, Part III.B.2., have construed this type of breach as form
interference under the FMLA. While this may be another reasonable approach, especially if intent
to interfere is not a required element of that claim, a separate cause of action would more clearly put
employers on notice that they are expected to protect employee health information.
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PDA, by design, contemplates that employees will share private health
information in order to receive reasonable workplace accommodations for
pregnancy, childbirth, and related medical conditions, much same way
employees share medical information when seeking accommodations under
the ADA. As such, it is entirely appropriate and logical to add a comparable
duty of confidentiality to the PWFA. Further, courts should interpret the
existing confidentiality provisions in the FMLA and ADA more expansively.
This could easily be achieved, for example, through judicial interpretations
that protect employee’s health information whether shared voluntarily by an
employee in the process of seeking to exercise statutory rights or the
information is shared in response to a formal request for health information
by the employer. This is easily justifiable in light of the existing FMLA and
ADA statutory and regulatory language, which protects employee health
information without distinctions as to whether the information was shared
by an employee or requested by an employer.
538
Establishing and expanding
the scope of confidentiality provisions in these ways would further the
purposes of the PDA, FMLA, and ADA by making it possible for employees
to provide the notice that is required to receive statutory rights without
fearing that their health information will be shared beyond particular
decisionmakers responsible for determining eligibility for leave.
539
No
employee should be faced with a choice of having their private health
information compromised or receiving a statutorily protected leave or
workplace accommodation when they experience a miscarriage.
C. Paid Personal and Sick Leave
Having access to paid sick and personal leave is important for
workers affected by miscarriage for a number of reasons. First, the FMLA
only guarantees a right to unpaid leave.
540
Therefore, many eligible workers
simply cannot afford to take it.
541
The ability to use accrued sick leave to
538
For example, the FMLA confidentiality requirements say nothing about the source of
information having any bearing on whether health information is protected. See Recordkeeping
Requirements, 29 C.F.R. § 825.500 (2022) (“Records and documents relating to certifications,
recertifications or medical histories of employees or employees' family members, created for purposes
of FMLA, shall be maintained as confidential. . . .”). As for the ADA, as amended, the regulation
governing confidentiality specifies that health information gathered pursuant to an employer
required medical examination must be treated as a confidential medical record, see 29 C.F.R. §
1630.14 (2022), but this should not preclude a court or the EEOC from interpreting the ADA, §
12112(d), to also protect voluntarily shared health information.
539
See supra Part III.B. 1, discussing notice requirements of the PDA, FMLA, and ADA.
540
See discussion supra Part II.B.
541
Elise Gould, Providing Unpaid Leave Was Only the First Step; 25 Years after the Family and
Medical Leave Act, E
CON. POLY INST. (Feb. 1, 2018), https://www.epi.org/blog/providing-unpaid-
leave-was-only-the-first-step-25-years-after-the-family-and-medical-leave-act-more-workers-need-
paid-leave/ (reporting that about forty-five percent of FMLA-eligible workers did not take leave
because they could not afford unpaid leave, and that among workers who took FMLA leave, one-
third cut their time off short due to cover lost wages); Who Can Afford Unpaid Leave?, C
TR. FOR AM.
PROGRESS (Feb. 5, 2013), https://www.americanprogress.org/article/who-can-afford-unpaid-leave/
(“[N]early half of workers who qualify for [FMLA] leave but do not take it say they are unable to for
financial reasons, and two-thirds of those who do take leave report experiencing financial difficulties
as a result).
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replace pay while taking an FMLA or other leave is a crucial benefit for
making the protections of the FMLA and other federal employment statutes
accessible to lower-wage workers who experience a miscarriage or who have
family members in these circumstances. Second, although sick and personal
leave are best suited for relatively short-term impacts of miscarriage and do
not address the longer term physical and mental health effects, which are
common,
542
these types of leave can at least protect the most vulnerable
workers who can lose their job for missing even a day of work.
543
Sick and
personal leave can fill in the gaps when the impact of miscarriage does not
rise to the level of a serious health condition under the FMLA or a disability
under the ADA. Another benefit is that employers may be less likely to
require employees to divulge private medical information to use intermittent
sick or personal leave, which would protect the privacy of those affected by
miscarriage.
544
Therefore, while not a stand-alone solution,
545
having the
access to paid sick leave and personal days is an important supplement to
the rights afforded by the PDA, FMLA, and ADA, especially for low-wage
workers.
Sadly, however, low-wage workers are least likely to have paid sick
or personal leave. Only eleven countries do not provide guaranteed paid sick
leave, and the United States is one of them.
546
Faced with the health and
labor crisis caused by the COVID-19 pandemic, Congress enacted emergency
federal legislation that provided enhanced sick leave benefits, but these
benefits were temporary and most have expired.
547
Despite lacking a federal
right to paid sick leave, almost 80% of workers in the United States had
access to paid sick leave as of March 2021.
548
But a closer look reveals a
542
See Part I supra for a discussion of the health effects of miscarriage.
543
See notes 231–232 and accompanying text; see also Love v. First Transit, No. 16-cv-2208,
2017 WL 1022191, at *6 (N.D. Ill. Mar. 16, 2017) (recounting the facts of a call center worker fired
for missing less than a day of work when she was experiencing a miscarriage).
544
See Part III.B. supra for a discussion of the cultural norm of secrecy surrounding miscarriage.
545
Another limitation is that many employers do not permit employees to use sick leave to care
for others. See, e.g., Johns v. Univ. of Iowa, 431 F.3d 325 (8th Cir. 2005) (holding that policy allowing
birth mothers and adoptive parents of both sexes, but not birth fathers, to use accrued sick leave for
absences after the birth or adoption of a child, is not sex discrimination). So, again, sick leave is not
a comprehensive solution to the current gaps in legal protection for individuals affected by
miscarriage, particularly partners and intended parents, but as I argue here, it is an important
supplement.
546
FACT SHEET, PROTECTING HEALTH DURING COVID-19 AND BEYOND: WHERE DOES THE U.S.
STAND COMPARED TO THE REST OF THE WORLD ON PAID SICK LEAVE, WORLD POLICY ANALYSIS
CENTER (May 2020), https://ph.ucla.edu/sites/default/files/attachments/Fact%20Sheet%20-
%20Protecting%20Health%20During%20COVID-19%20and%20Beyond%20-%2011May2020.pdf;
OECD
POLICY RESPONSES TO CORONAVIRUS (COVID-19): PAID SICK LEAVE TO PROTECT INCOME,
HEALTH AND JOBS THROUGH THE COVID-19 CRISIS, OECD, https://www.oecd.org/coronavirus/policy-
responses/paid-sick-leave-to-protect-income-health-and-jobs-through-the-covid-19-crisis-a9e1a154/
(last updated Jul. 2, 2020) (noting that South Korea is the only other OECD member who does not
mandate paid sick leave).
547
See Paid Leave in the U.S., KFF (Dec. 17, 2021), https://www.kff.org/womens-health-
policy/fact-sheet/paid-leave-in-u-s/#footnote-543162-1; Paid Sick Leave, NCSL (Jul. 21, 2020),
https://www.ncsl.org/research/labor-and-employment/paid-sick-leave.aspx.
548
The Economics Daily, Paid Sick Leave was Available to 79 Percent of Civilian Workers in
March 2021, B
UREAU OF LAB. STAT. (Oct. 21, 2021), https://www.bls.gov/opub/ted/2021/paid-sick-
leave-was-available-to-79-percent-of-civilian-workers-in-march-2021.htm.
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correlation between income and paid sick leave: while 95% of workers in the
top 10% earnings bracket receive sick pay, only 35% of workers in the bottom
10% bracket have access to sick pay,
549
a disparity exacerbated by the
pandemic.
550
Somewhat alleviating the lack of coverage, fourteen states now
guarantee paid sick leave, as well as Washington D.C. and twenty cities and
counties.
551
Further, Maine and Nevada recently enacted general paid leave
laws that workers may use for any purpose, including sickness.
552
The
specifics of these laws vary by state, such as differences in waiting periods
before accruing leave and exemptions for small employers of different sizes,
but most provide thirty to forty hours of leave per year.
553
Since at least 2004, many bills have been introduced in Congress that
would address and some of the problems caused by insufficient paid sick
leave in the United States. These proposed laws include the Family and
Medical Insurance Leave Act,
554
which would create a national family and
medical leave insurance fund to provide workers with up to twelve weeks of
partial income when they take time off for their own serious health
conditions (including pregnancy-related health conditions and childbirth) or
for the serious health condition of qualified family members, among other
benefits, and the Healthy Families Act,
555
which mandates that employers
with more than fifteen employees provide paid sick days for all employees.
A Republican proposal is the Strong Families Act,
556
which would provide
tax credits to employers that offer paid leave to employees on FMLA leave.
Finally, President Biden’s Build Back Better Act
557
would mandate four
weeks of paid family and medical leave starting in 2024 as part of a $2
trillion economic relief package; while the spending legislation passed the
House of Representatives in November 2021,
558
it stalled and died in the
Senate when one Republican refused to support the package.
559
As a recent student note on paid sick leave correctly asserts, “[t]he
United States needs a national paid sick day standard to protect all working
people.”
560
While individuals who experience miscarriage or whose family
members are affected by miscarriage are not unique in this regard, such a
549
Id.
550
Editorial Board, Opinion, A Pandemic Shows Why the United States Should Not Be One of
Only 11 Nations Without Paid Sick Leave, W
ASH. POST (Jan. 15, 2022, 8:00 AM),
https://www.washingtonpost.com/opinions/2022/01/15/pandemic-shows-why-united-states-should-
not-be-one-only-11-nations-without-paid-sick-leave/.
551
See Paid Leave in the U.S., supra note 544.
552
Id.
553
See Paid Sick Leave, supra note 544.
554
See H.R. 804, 117th Cong. (2021); S. 248, 117th Cong. (2021).
555
See H.R. 2465, 117th Cong. (2021); S. 1195, 117th Cong. (2021).
556
See H.R. 3595, 115th Cong. (2017); S. 1716, 115th Cong. (2017).
557
See H.R. 5376, 117th Cong. (2021); S. 1716, 115th Cong. (2017).
558
See Summary: H.R.5376 — 117th Congress (2021-2022),
https://www.congress.gov/bill/117th-congress/house-bill/5376?r=1&s=3 (last visited Feb. 23, 2022) .
559
See Joe Manchin Kills the Build Back Better Act, Joe Biden’s Ambitious Legislative Package,
E
CONOMIST, Dec. 19, 2021, https://www.economist.com/united-states/2021/12/19/joe-manchin-kills-
the-build-back-better-act-joe-bidens-ambitious-legislative-package.
560
Dylan Karstadt, Too Sick to Work? Defending the Paid Leave Movement and the New Jersey
Sick Leave Act, 44 S
ETON HALL L. REV. 145, 174 (2019).
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development is an important component of any response to the incredibly
common experience of miscarriage.
561
D. Occupational Safety and Health Protections
Dangerous work conditions that increase the risk of miscarriage can
conceivably be perceived as a harm within the jurisdiction of the
Occupational Safety and Health Administration (OSHA). This idea has
received very little attention, likely due to the fear that protecting fetuses
from workplace hazards will feed into the fetal “personhood” movement
562
that underlies efforts to end women’s constitutional rights to contraception
and abortion, and, ultimately, to overturn Roe v. Wade.
563
Another possible
reason for this neglect is the success of the feminist argument in the 1980s,
which prevailed in then-debates on the issue, that workplace fetal protection
policies were designed to drive women out of higher paid blue-collar
industrial jobs dominated by men.
564
These fetal protection policies broadly
excluded women from jobs that exposed them to hazardous chemicals, such
as lead. As the Supreme Court concluded with little difficulty in the seminal
case of International Union UAW v. Johnson Controls,
565
sex-based fetal
protection policies are suspect on their face.
566
However, carefully crafted,
scientifically grounded occupational safety standards such as those NIOSH
has issued concerning heavy or repeated lifting while pregnant,
567
seem less
likely to carry the political and legal risks of sex-based workplace rules of
the past,
568
which were blatantly based on stereotypes about women as
inauthentic workers
569
and flawed scientific information.
570
561
A state-by-state and city-by-city response may also help, and this patchwork approach may
be all that is politically feasible at the present time, but, ideally, the response should in the form of
be a federal law that uniformly protects the maximum percentage of the United States workforce.
562
See discussion supra note 429 and accompanying text.
563
410 U.S. 113 (1973).
564
See Mary E. Becker, From Muller v. Oregon to Fetal Vulnerability Policies, 53 U. CHI. L. REV.
1219, 1238-41 (1986).
565
499 U.S. 187 (1991). Johnson Controls had adopted a fetal protection policy that broadly
excluded women under age seventy from jobs that exposed them to lead unless they could show they
were sterilized . Virginia Green, then fifty years old, was out of a job on Johnson Control’s battery
assembly line she had held for eleven years due to the policy; other women decided to be sterilized
to keep their jobs, as they needed the income. These women sued Johnson controls for sex
discrimination and won. See David Kirp, Fetal Hazards, Gender Justice and the Justices: The Limits
of Equality, 34 W
M. & MARY L. REV. 101, 104-06 (1992).
566
Id. at 197 (“The bias in Johnson Controls’ policy is obvious. Fertile men, but not fertile
women, are given a choice as to whether they wish to risk their reproductive health for a particular
job.”)
567
See Physical Demands, supra note 400.
568
The fact that men can now become pregnant further undermines the argument that
workplace safety rules aimed at reducing miscarriage risk would reinforce gender-based stereotypes.
See Obedin-Maliver & Makadon, supra note 21.
569
Vicki Schultz can be credited developing the idea of “women as inauthentic workers.” See
Vicki Schultz, Life’s Work, 100 C
OLUM. L. REV. 1881, 1892 (2000).
570
Moreover, establishing and enforcing occupational safety standards for pregnancy might, in
turn, promote opportunities for new expectations about workplace safety for all workers and thus
lead to similar safety standards for non-pregnant workers as well, thus, for example, reducing risks
for musculoskeletal injuries for all workers.
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Workplace hazards and conditions that increase the risk of
miscarriage is consistent with the language of the statute that established
OSHA. Although there is no evidence that Congress contemplated pregnancy
risks when it sought to regulate workplace safety in 1970, this argument has
not stopped the Supreme Court from expanding the coverage of other major
federal employment statutes.
571
For example, there is no evidence that
Congress had disparate impact,
572
sexual harassment,
573
same-sex sexual
harassment,
574
or sexual-orientation or sexual-identity discrimination
575
in
mind when it sought to regulate employment discrimination, yet this
argument has not stopped American courts from equating these types of
discrimination with discrimination outlawed by Title VII. Indeed, as Anita
Bernstein has pointed out many years ago when arguing that the OSH Act
should cover sexual harassment:
[A] statutory reference to the “psychological factors involved” in
occupational safety and health is more than exists in the Civil
Rights Act of 1964 to support the sex-discrimination paradigm. The
official purpose of OSHA is to address the problem of workplace
health and safety, nothing narrower than that. The agency, founded
only in 1973 and altered several times by political forces since then,
does not have a long heritage of only one approach to regulation
that would make it unable to function in this new domain. Case law,
moreover, supports a broad mandate.
576
A great deal of theorizing and advocacy has conceptualized
pregnancy and work as separate and independent of one another. Work is
public and pregnancy is private. Work is where individuals go without their
bodies or families; pregnancy concerns sex, family, and bodies. Work is paid
and pregnancy is unpaid. Employment law and health law are separate
fields, and so on. Thus, the focus has been on legal reforms that would adjust
work to “accommodate” the experience of pregnancy. But, as Part II.D. of
this Article demonstrated, for many workers, especially the most
marginalized workers in physically strenuous occupations, work itself can
be hazardous to a successful pregnancy and a risk factor for miscarriage.
This understanding brings to light the urgent need to include all women, not
just the most privileged, in any agenda addressing miscarriage and the
workplace. Toward that end, it is time for states and OSHA to tackle the
issue of occupational safety for pregnant workers.
571
See, e.g.,
572
Griggs v. Duke Power Co., 401 U.S 424 (1971).
573
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S.
775 (1998).
574
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).
575
Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
576
See Anita Bernstein, Law, Culture, and Harassment, 142 U. PA. L.R. 1277, 1292 (1994)
(internal citations to the OSH Act omitted). Catharine MacKinnon also briefly floated this idea in
her influential book, Sexual Harassment of Working Women. See C
ATHARINE A. MACKINNON, SEXUAL
HARASSMENT OF WORKING WOMEN 159 n.48 (1979).
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The clinical practice guidelines that ACOG has developed for lifting
while pregnant,
577
and which OBGYN doctors refer to when they recommend
light duty for their pregnant patients, are based on the OSHA NIOSH
occupational standards for lifting during pregnancy.
578
That is, occupational
safety standards are already presently the basis for the vast majority of
workers’ requests for light duty work assignments under the PDA and (if
adopted, PWFA), as represented in the doctor’s notes that workers present
to their employers. While it is heartening to know that OSHA occupational
safety standards are perhaps indirectly seeping into workplace practices via
the medical profession, a legal framework requiring individual workers to
request leave or accommodations (which are often denied) when work poses
a risk of miscarriage is a highly inefficient and ineffective means of ensuring
occupational safety for pregnant workers. Why not simply regulate
occupational risks for pregnant workers directly? Toward that end, OSHA
should prioritize hazardous work conditions such as heavy and repetitive
lifting, standing on one’s feet for many hours without breaks, working in
very hot environments, and night-shift work, which are linked to an
increased risk of miscarriage. OSHA’s regulatory approach, whereby
inspectors visit a worksite and impose citations with fines attached, can
readily be applied to these types of physical work requirements. Moreover,
OSHA has experience in regulating these types of work conditions.
Therefore, its inspectors and experts are prepared to act in this area. This
could be achieved outright, by OSHA, or through OSHA-approved state
plans.
579
Ideally, it would make more sense to have a set of permanent,
national standards on work and pregnancy safety, which would promote
predictability, uniformity, and consistency with how employees would be
treated throughout the country. However, given that OSHA is so under-
resourced and limited in its regulatory capacity, it may make sense to start
with state plans. Presently, more than half of U.S. states have OSHA-
approved plans in place for other kinds of work hazards.
580
However this is
approached, it is time to start a national movement for occupational safety
for pregnant workers.
C
ONCLUSION
Miscarriage is a consequential life event experienced by up to one-
fourth of pregnant people and affecting hundreds of thousands of American
577
ACOG 2018 GUIDELINES, supra note 401.
578
Compare id. at e121 fig.1, with MacDonald et al., supra note 404 (demonstrating that the
ACOG standards are copied directly from the NIOSH standards, including the illustrations).
579
OSHA allows states to run their own state occupational safety plans if approved by OSHA
and they provide at least as generous coverage as federal OSHA standards. See 29 U.S.C. §§
667(c)(2), 672. For a description of the rather complicated federal-state partnership for regulating
occupational safety set by the OSH Act, see Seconda, supra note 415.
580
See State Plans, OCCUPATIONAL SAFETY AND HEALTH ADMIN., U.S. DEPT OF LAB.,
https://www.osha.gov/stateplans/ (last visited Feb. 24, 2022) (reporting that there are twenty-eight
OSHA-approved workplace safety and health programs operated by individual states or U.S.
territories).
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workers. Despite this, none of the federal employment laws passed by
Congress to protect workers from pregnancy discrimination, provide job
protected leave for serious illness, or reasonable disability accommodations
adequately accounts for miscarriage. Even worse, the conditions of work
itself can place a desired pregnancy at risk, especially for low income and
minority pregnant women working in occupations involving strenuous
physical tasks, such as childcare, warehouse picking and packing, mail
delivery, food processing, and home health and nursing care. Yet our
country’s federal employment laws do not sufficiently regulate these
occupational pregnancy risks, whether through a right to leave, light-duty
work accommodations, or occupational safety rules. The Pregnant Workers
Fairness Act is an excellent first step to address these shortfalls in federal
law, but it would not be anywhere near enough, particularly given the
entrenched culture of secrecy surrounding miscarriage that is reinforced by
legal doctrines that require workers to divulge private health information in
order to receive necessary leave or work adjustments, yet insufficiently
protect them from retaliation and breaches of confidentiality when they do.
Therefore, a more comprehensive approach is required. This includes not
only passing the PWFA, but enhanced antiretaliation and privacy
protections, access to paid sick and personal leave, and occupational safety
standards to reduce the risk of miscarriage for American workers. For there
to be real reproductive justice, workers affected by miscarriage must be able
to safely come out of the shadows, with the assistance of employment law.
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