In Absence Management, ADA, FMLA

I have to wonder if when we burned our bras and fought for equal rights in the work place women ever thought that might mean that they would have to be both a full time worker and a full time mother/housekeeper/chauffer/maid? Gaining equal rights in the office did not mean we got a break from the stress of parenthood. I wonder if we simply worked very, very hard to double our workload. Sometimes when it’s 10:30 at night and I’ve worked a 10 hour day, and I’m putting the last dish away or folding the last pair of little socks, I often shake my head and wonder, just what the heck were we thinking!?

Pregnancy as a disabilityDue to our hard earned right to work with men, we needed to again work harder in order to obtain protections in the office, because we were in fact women moving into the space of men whether we liked it or not. The Equal pay Act of 1963, The Equal Employment Opportunity Act of 1972, The Pregnancy Discrimination Act of 1978, are some examples, and the list goes on. I’m mind boggled to think that here we are today in the year 2014 and we’re still working towards equality. Not equality with men however, I think in this situation we have to embrace our differences…but equality with the disabled or temporarily disabled. We are talking about pregnancy discrimination. The EEOC has pregnancy discrimination near the top of their priority list, and has for the first time in 30 years, updated their guidelines in order to make very clear that providing accommodations to pregnant employees is required under Federal law.

“There’s a reason we needed to update the guidelines, and that’s because this problem hasn’t gone away,” said Chai Feldblum, an EEOC commissioner who has been pushing for new guidelines. “This is an enduring problem in America’s workplaces – we’re not where we need to be with regard to fair, equal treatment of pregnant workers. We’re just not.”

In fact, the EEOC data shows a 46 percent increase of pregnancy discrimination complaints from 1997 to 2011. I must admit that every time I read about a new state enacting a pregnancy discrimination law or another lawsuit for some egregious misstep, I shake my head and wonder if people forget what century we’re in. This morning however, I saw this from a slightly different perspective and it intrigued me.

I recall saying “I’m pregnant, I’m not disabled” more than once during my pregnancy, and I’ve heard it a thousand times from other women as well. Perhaps we were attempting to burn the proverbial bra here? Ironically, with these recent amendments, pregnant women should be offered the same accommodations that would be provided to other temporarily or permanently disabled employees protected under the ADA and ADAAA. Am I saying that pregnancy is indeed a disability? Well, I’m no longer sure myself. Hear me out.

In the first trimester of my pregnancy, if I didn’t eat at least a few bites of food every 90 minutes, someone from my office would have been picking my faint body up off the floor, or cleaning vomit off my desk.

In my second and third trimester, if I were not allowed to pee 47 times a day, it would have been embarrassing for everyone.

In my third trimester, if I wasn’t provided understanding that I showed up for meetings a few minutes late, because it took me that much longer to waddle to another floor than everyone else who left the previous meeting with me at the same time, I’m sure there would have been some visits to HR. It certainly could have meant the end of my employment when the physician told me I was no longer able to fly and it happened to be “finalist season.”

It certainly felt like I had a disability post-pregnancy when my breasts were so engorged that I had no choice but to excuse myself from a 6 hour meeting in order to express milk. Refer to that “embarrassing for everyone” comment. I also was singled out at every airline security point, because apparently an electric Madela breast pump x-rays quite similar to something much more ominous. That too was uncomfortable for everyone as they’d pull out all the tubes and attachments right there in the open, in front of everyone. (By the way, I recommend the Madela.) All of these things impacted my normal performance regardless of how badly I wanted to continue the normal functions of my position. Whether I liked it or not, I was a woman and a mother and I was different – and for a short period of time I needed the people around me to be understanding.

A current case being reviewed by the Supreme Court, and a great example of how lucky I was is highlighted in Young vs. UPS. Ms. Young was not provided accommodations related to her temporary inability to lift 70 pounds! However, had she had a disability, temporary or otherwise (think broken leg) – the accommodations of a desk job would have been provided. In another recent case, a pregnant Kansas retail worker was fired because she needed to carry a water bottle in order to stay hydrated, a violation of company policy. I’m sorry WHAT?! She needed water! A basic human requirement exacerbated by pregnancy was denied to her…but if she had had a disability qualified under the ADA or ADAAA she could have choked on a garden hose and it would have been acceptable.

Thankfully for me, I worked in an environment where I could eat at my desk, pee when I wanted to, not fly when I couldn’t, and joke with mature colleagues about boobs and milk when a situation got sticky. Fortunately for me, I didn’t have them saying it was too uncomfortable for them to travel with me because of my “womanly needs”, or that I was negatively impacting business because I needed a 10 minute break. I think it’s important to note that this was before the 2010 amendment to the FLSA to provide breast-feeding break time, so it could have turned out very differently for me. See section 7 of the Fair Labor Standards Act.

Fortunately for me that although I didn’t even realize it at the time, I worked for a great company who was already accommodating my needs without my having to ask.

Not all of employees are offered these same liberties, and this is why we must continue to amend these laws to encompass ALL of pre and post birthing needs. Whether we like it or not, we need to start looking at pregnancy and nursing exactly the way we look at employees who are protected under the ADA and ADAAA. As an employer, if you treat your pregnant and nursing mothers the same as your other disabled employees, you’ll keep yourself out of hot water.

By the way, after I’ve folded that last sock and tucked myself into bed after a 16 or 17-hour day, I am so grateful that I can work to earn a living AND be a full time mom successfully. Eternally thankful for the bra burners…until next laundry day.

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