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21 Yale J.L. & Feminism 15 (2009-2010)
Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act's Capacity-Based Model

handle is hein.journals/yjfem21 and id is 17 raw text is: Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act's Capacity-Based Model Joanna L. Grossmant and Gillian L. Thomastt ABSTRACT: This Article considers the gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. While there is no inherent conflict between pregnancy and work, women in physically strenuous or hazardous occupations, from nursing to law enforcement, routinely confront situations in which they are physically unable to perform aspects of their job or, though physically able, seek to avoid certain tasks because of the potential risks to maternal or fetal health. The Pregnancy Discrimination Act of 1978 (PDA) broadly protects against pregnancy discrimination, but it provides absolute rights only to the extent a pregnant woman is able to work at full capacity, uninterrupted by pregnancy's physical effects. To the extent that the law grants affirmative rights to the pregnant worker with temporary physical limitations, such as the right to workplace accommodation, it is only on a comparative basis-that is, only to the extent those rights already are provided to similarly situated temporarily disabled employees. In this way, pregnancy continues to inhibit equal employment opportunity for millions of women, three decades after the PDA's passage. After briefly examining the medical literature documenting the conflicts between pregnancy and certain kinds of work, as well as the law as applied to pregnant workers who are fully capable or fully incapable due to the effects of pregnancy or childbirth, we consider the predicament of women in physically demanding fields whose work capacity is partially diminished by pregnancy. We focus here on the problem of access to light-duty work-temporary alternative job assignments that accommodate the pregnant worker's limitations. Without such accommodation, the pregnant firefighter or home t Professor, Hofstra Law School. B.A. Amherst College; J.D. Stanford Law School. My thanks to Pamela Holland and Frank Salamone for assistance with research. tt Senior Staff Attorney, Legal Momentum (formerly NOW Legal Defense and Education Fund). B.A. Yale College; J.D. University of Michigan Law School. I am grateful to Deborah Karpatkin for her insight and collaboration, and thank legal interns Andrea Gittleman, Jordan Goldberg, Mollie Kornreich, and Devi Rao for their invaluable research assistance. Copyright © 2009 by the Yale Journal of Law and Feminism

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