Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S.

SJ Quinney College of Law, University of Utah SJ Quinney College of Law, University of Utah

Utah Law Digital Commons Utah Law Digital Commons

Utah Law Faculty Scholarship Utah Law Scholarship

2022

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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Part of the Family Law Commons, and the Labor and Employment Law Commons

DRAFT:Thisisaworkinprogress.Pleaseseekauthorpermissioninciting.

TobepublishedinVolume108oftheCornellLawReview(forthcoming2023).

MISCARRIAGE OF JUSTICE:

ARLY PREGNANCY LOSS AND THE LIMITS OF U.S.

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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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

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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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.

I remember the waiting. Waiting to know if a pregnancy was

succeeding or failing after a “threatened miscarriage.”

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

rapidly increases from 0 to up to 288,000, like the tachometer

of a race car when the driver floors it.

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.

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

until your hCG levels drop further, perhaps three to four

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.

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

EWHURST’S TEXTBOOK

OBSTETRICS AND GYNAECOLOGY 559, 561 t.40.1(Christoph Lees & Tom Bourne eds., 9th ed. 2018).

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).

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

ASS’N., 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).

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, GABBE’S OBSTETRICS: NORMAL AND PROBLEM PREGNANCIES

615, 616 (2020) (“[A]almost all losses are retained in utero for an interval before clinical recognition.

. . .”).

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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weeks. Hospital policy.”

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.

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),

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)

requires

covered employers to provide employees with job-protected, unpaid leave for

personal or family illness. The Americans with Disabilities Act of 1990

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.”).

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

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

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).

29 U.S.C. §§ 2000e(k), 2000e-2).

29 U.S.C. §§ 2601-54 (2012).

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(ADA), as amended by the ADA Amendments Act of 2008,

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.

However, none of these laws clearly

addresses the experience of miscarriage as it interfaces with the workplace.

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.

Others have drawn attention to the need for

menstrual justice.

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

42 U.S.C. § 12101-12213.

29 U.S.C. § 654(a)(1).

See infra Part II.

Id.

See, e.g., Stephanie Bornstein, The Politics of Pregnancy Accommodation, 14 HARV. L. & POL’Y

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).

See, e.g., BRIDGET J. CRAWFORD & EMILY GOLD WALDMAN, MENSTRUATION MATTERS:

CHALLENGING THE LAW’S 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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commonality of this pain, the conversation remains taboo, riddled with

(unwarranted) shame, and perpetuating a cycle of solitary mourning.”

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.

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.

The causes of many

miscarriages are unknown.

The biological mechanisms to explain

miscarriage are not well-understood. Therefore, individuals who experience

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.

Miscarriage, NEW OXFORD AM. DICTIONARY (3d ed. 2010).

Lesley Regan & Raj Rai, Epidemiology and the Medical Causes of Miscarriage, 14 BAILLIERE’S

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.

Moreover, the risk of pregnancy loss is greater for certain

groups of women.

Older individuals are at higher risk of miscarriage.

African Americans also have a nearly two-fold higher risk of miscarriage

compared with whites, and a 93% greater hazard for a later miscarriage.

Other risks for miscarriage include obesity, prior history of miscarriage, and

certain health conditions (such as polycystic ovary disease, high blood

pressure, and diabetes).

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).

Most miscarriages occur early in pregnancy and are generally

invisible to all but the closest family members.

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.

Symptoms of grief may be impossible to distinguish from depression, and

some women may continue to experience depressive symptoms for months

Id. at 840.

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.

Id.

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).

Regan & Rai, supra note 19, at 843–45.

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.

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).

Id. at 2.

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or years.

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.

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.

Contrary to popular belief, a subsequent pregnancy after a miscarriage is

not a protective factor against depression or anxiety,

and mood symptoms

following a miscarriage do not always resolve with the birth of a subsequent

healthy child.

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.”

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.

That is, the emotional experience

of reproductive loss spans across many reproductive contexts and is not

limited miscarriage’s physical aspects.

Id. at 2–3.

Id. at 5.

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.”).

Id. at 5.

Id.

GWS Kong et al., Gender Comparison of Psychological Reaction After Miscarriage—A 1-Year

Longitudinal Study, 117 BJOG:

INT’L J. OBSTETRICS & GYNECOLOGY 1211, 1211 (2010).

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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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.

The PDA

defines sex discrimination under Title VII, to include discrimination

“because of pregnancy, childbirth, or related medical conditions.”

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.

Employers with fifteen employees

or more are covered by the provisions provided in the PDA.

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.

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.

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

Pub. Law No. 95-555, 92 Stat. 2076 (1978).

Id.

U.S. EQUAL EMP. OPPORTUNITY COMM’N, Pregnancy Discrimination,

https://www.eeoc.gov/laws/types/pregnancy.cfm (last visited Feb. 5, 2022).

See 42 U.S.C. § 2000e (2018); Pregnancy Discrimination, U.S. EQUAL EMP. OPPORTUNITY

COMM’N, https://www.eeoc.gov/eeoc/publications/fs-preg.cfm (last visited Feb. 4, 2022).

Id.

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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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.

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).

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

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.

She worked

at a health club for four years and had been promoted to supervisor.

She

suffered a stillbirth and then two subsequent miscarriages.

A few days

after the second miscarriage, her employer presented her with the choice of

accepting a demotion or resigning.

She went on short term disability leave

for a couple of months and then resigned.

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.

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.

In Ingarra v. Ross Educ., the plaintiff was a dental instructor at a

private, for-profit community college focusing on medical education in

Michigan.

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

Id.

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).

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

ed. 2019).

Gatten v. Life Time Fitness, Inc., No. 11-2962, 2013 WL 1331231, at *2 (D. Minn. Mar. 29,

2013)

Id. at *1.

Id. at *2–3.

Id. at *3.

Id.

Id. at *6.

Ingarra v. Ross Educ., LLC, No. 13-CV-10882, 2014 WL 688185, at *1 (E.D. Mich. Feb. 21,

2014).

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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

full-time to part-time.

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.

Ingarra sued under the PDA, claiming she was demoted and

ultimately terminated because of her pregnancy and miscarriages despite an

excellent work record.

On the basis of these facts, she defeated a motion for

summary judgment.

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.

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.

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.

She called the new manager

personally on the third day to explain her absences, but he told her she was

fired.

The plaintiff filed suit, claiming wrongful termination and asserting

that the new manager had not given the alleged instruction,

that she had

never before been disciplined for absences from work, and that she had not

witnessed nonpregnant coworkers being disciplined in similar situations.

The court declined to grant the employer summary judgment, explaining

that the plaintiff should be able to advance with the pretext inquiry.

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

Id.

Id. at *6.

Tuttle v. Advanced Roofing Sys., Inc., 2016 WL 8716486 at *2–3 (S.D. Ind. Jan. 15, 2016).

Id. at *2.

Id. at *3.

Id.

Id. at *2.

Id. at *4.

Id. at *10.

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Parcel Service, Inc.,

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.

Peggy Young worked as a delivery driver for UPS.

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.

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.

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.

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.”

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.

Refusing to defer to EEOC guidelines that supported Young’s interpretation

of the statute,

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

135 S. Ct. 1338 (2015).

Id. at 1344.

Id.

Id. at 1347.

Id.

Id. at 1349.

Id. at 1347.

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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limitations), irrespective of the nature of their jobs, the employer’s

need to keep them working, their ages, or any other criteria.

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.

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.

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.

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.

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.

Indeed, to

illustrate just how out-of-step the Young Court’s unique “large percentage”

Id. at 1349–50.

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.

Id. (emphasis added).

2 MCCORMICK ON EVIDENCE § 339 (Kenneth S. Broun et al. ed., 8th ed. 2020).

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.

Although not explicit, perhaps the sheer number of

workers who experience pregnancy

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

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.

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.

She had a history of pregnancy complications, so her

pregnancy was considered high risk for a miscarriage.

Despite a policy of

providing light duty to workers injured on the job,

the jail gave her two

See Laura T. Kessler, Employment Discrimination and the Domino Effect, 44 FLA. ST. L. REV.

1041, 1115 (2017).

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. DEP’T 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”).

See discussion infra Part II.C.

820 F.3d 67, 75–76 (2d Cir. 2016).

Id. at 71.

Id.

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options: go on disability leave (with substantially reduced income) or get a

note from your doctor clearing you for full duty.

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.

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.

She left work and did not

return until after she gave birth.

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.”

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.

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.”

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.”

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.

While a seeming victory as a legal matter, after the Second circuit

Id.

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).

820 F.3d at 71.

Id.

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.

820 F.3d at 75–76.

Id.

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,

Legg lost her claims of

disparate treatment and disparate impact.

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.

Martin had worked at Winn-Dixie for

seventeen years, working her way up from part-time cashier to co-

manager.

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.

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.”

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

Id. at 70.

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.

132 F. Supp. 3d 794, 802, 819–20 (M.D. La. 2015).

Id. at 801–02.

Id. at 802–03.

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 COMM’N, 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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 POL’Y

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 WOMEN’S 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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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. DEP’T 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 ASS’N (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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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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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

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

RCHIVE WOMEN’S 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 INT’L 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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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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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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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,

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, NAT’L INST. CHILD HEALTH & HUM. DEV. (Jan.

31, 2017), https://www.nichd.nih.gov/health/topics/infertility.

213

Fertility Treatments for Females, Eunice Kennedy Shriver, NAT’L 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 ASS’N (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, NAT’L 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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 SOC’Y 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

AT’L 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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 IVF‐Related 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.

DEP’T 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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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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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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

EST PRACTICE & RESEARCH CLINICAL OBSTETRICS & GYNAECOLOGY 229, 239–40 (2007).

269

Katherine J. Gold et al., Miscarriage and Cohabitation Outcomes after Pregnancy Loss, 125

EDIATRICS 1202, 1205–06 (2010).

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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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.

DEP’T 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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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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

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. & POL’Y 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

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

NT’L 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. DEP’T 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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. POL’Y 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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 & ENV’T 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 & ENV’T 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

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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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 ENV’T 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 & ENV’T. 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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. & SOC’Y 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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,

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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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. POL’Y 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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

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

COMM’N, 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. DEP’T 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

AT’L WOMEN’S 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

AT’L 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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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

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. POL’Y 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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,

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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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

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.

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. DEP’T 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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2023] CORNELL LAW REVIEW [Vol. 108: p. xx

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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