Tuesday, November 22, 2011

Cox on Pregnancy as Disability

New on SSRN:  Jeannette Cox, Pregnancy as "Disability" and the Amended Americans with Disabilities Act (Boston College Law Review, forthcoming).  The abstract:
The recent expansion of the ADA’s protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect. 
Drawing on the social model of disability, this article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social model defines “disability” not as an impairment located within an individual’s body but as the interaction between the individual’s body and her social environment. Within this framework, workers may experience pregnancy, a healthy biological state, as a workplace “disability.” Accordingly, now that workers with temporary physical limitations comparable to pregnancy may receive ADA accommodations, courts should conclude that the ADA’s goal to reshape the workplace to accommodate previously excluded persons extends to pregnancy.



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