Via Eric B. Mayer’s Twitter feed, I saw that a few days ago the Wall Street Journal’s blog for working parents, The Juggle, posted on a hot legal issue these days, “Should Pregnancy Be Treated as a Disability?”

A recent study by a University of Dayton law professor, Jeannette Cox, asserts that pregnant women should be covered by the Americans with Disabilities Act, to protect them from being fired or forced to perform labor that could be harmful to mother or child. (The paper is forthcoming in March in  the Boston College Law Review.)

The ADA doesn’t recognize pregnancy as a disability, leaving pregnant women physically and financially vulnerable on the job, concluded Cox, who studies employment discrimination. She found that pregnant women are at risk for losing their jobs when “reasonable adjustments” aren’t made, such as retail workers fired for drinking water at work or pregnant police officers forced to perform rigorous assignments (while injured officers were given lighter duty).

She’s not kidding about “water at work” — I’ve heard of plenty of cases about pregnant women whose employers denied them basic necessities like water or chairs or bathroom breaks. Professor Cox’s idea is eminently sensible, of course, because there’s really no difference between a complicated pregnancy and the types of permanent disabilities covered by the ADA, except that the former is usually temporary.

In general, a woman with an uncomplicated pregnancy is unlikely to need anything more than the types of “accommodations” most of us take for granted, like drinking water when we’re thirsty or sitting down when we need to rest our legs. Pregnancy usually becomes an issue in the workplace in two circumstances: either the employer started imposing extra restrictions on the pregnant employee (sometimes as a means to force the pregnant employee out and thereby avoid Family and Medical Leave Act duties, and sometimes just out irrational prejudice in violation of the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964) or the pregnant employee developed a complication like pre-eclampsia, placenta previa, or gestational diabetes, and so has a weight/lifting restriction imposed upon them by their doctor.

At that point, the employer can either accommodate the pregnant woman, force her to take whatever family leave is available to her (often exhausting it before the birth of her child), or try to fire her. A disturbing number of employers do the latter two.

Thankfully, there’s already some form of protection available with the Pregnancy Discrimination Act (PDA), despite the Supreme Court’s best efforts to prevent pregnant women from working. In General Elec. Co. v. Gilbert, 429 U.S. 125 (1976), the Supreme Court held that General Electrics Scrooge-like decision to exclude pregnancy-related conditions from their disability plan, even while they covered every other disability imaginable, somehow didn’t violate Title VII’s prohibition on sex-based discrimination in the workplace. Go figure.

In 1978 Congress overruled General Electric Co. v. Gilbert by amending Title VII of the Civil Rights Act of 1964 “to prohibit sex discrimination on the basis of pregnancy.” Specifically, Congress amended the definitions of Title VII to include:

The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise.

The key phrase is that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” Thus, although an employer doesn’t have to offer reasonable accommodations, if the employer offers accommodations to other temporarily disabled employees, they have to offer the same to pregnant women, too.

Some courts understand what Congress meant, like the Sixth Circuit in Ensley-Gaines v. Runyon, 100 F. 3d 1220 (6th Cir. 1996): “when a Title VII litigant alleges discrimination on the basis of pregnancy in violation of the PDA, in order to establish a prima facie case of discrimination, she must demonstrate only that another employee who is similarly situated in her or his ability or inability to work received more favorable benefits.” Accord EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000).

Other courts, however, haven’t been so enlightened and take an antiquated view of a woman’s role in society by making it harder for them to work. See, e.g., Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir. 1998)(ignoring the “similar in their ability or inability to work” language and instead holding the PDA only requires similar treatment for workers injured off-the-job, but not workers injured on-the-job); Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309 (11th Cir. 1999)(same, baselessly claiming that providing pregnant woman the same accommodations as workers injured on the job would amount to “preferential treatment”).

In short, then, as with far too many issues, workers’ rights are dependent upon which federal circuit they live in. It’s disheartening to see so many courts run away from the clear language of the statute — which simply requires employers treat pregnant women the same as other workers “similar in their ability or inability to work” — to deny pregnant women their rights.

Of course, in the comments to the article on The Juggle, and everywhere else this issue is raised, opponents of the PDA will always raise the same argument that was raised in General Elec. Co. v. Gilbert: pregnancy is “voluntary,” so pregnancy-related medical conditions don’t deserve any sort of legal protection because all of the complications of pregnancy, like congestive heart failure and gestational hypertension, are the “choice” of the female employee. Of course, as Justice Brennan memorably related in his dissent in the Gilbert case, the same analysis would apply to “sport injuries, attempted suicides, venereal disease, disabilities incurred in the commission of a crime or during a fight, and elective cosmetic surgery,” all of which are routinely accommodated by workplaces.

Truth is, we still have a long way to go before we can ensure that, at a bare minimum, a woman isn’t treated differently from her co-workers just because she’s pregnant. Treating pregnancy like a temporary disability when the pregnancy restricts women’s ability to work — which normal pregnancies don’t — would helpful (as Eric Mayer noted a while back, at least one court has gone that way), but for now we need at least better enforcement of the PDA.