Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act's Capacity-Based Model

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.