Is Pregnancy a Disability?

If you are a character in The Handmaid’s Tale, it probably is, but if you are an Associate at Wal-Mart, it depends. Walmart Class Action. Okay, I should probably explain something about disability and employment law here at the beginning, rather than the end. In the workplace, a disability is supposed to be stigma-free, and employers are typically required to make reasonable accommodations of disabilities to enable employees to perform the essential job functions. To some employers, that an employee expecting a child could or should be treated as having a disability is, well, a pregnant idea.

On Friday May 12, 2017, two former Wal-Mart employees (they call them associates) filed a class action lawsuit against their former employer alleging that the low-priced leader chain failed to accommodate their requests to limit heavy lifting, climbing on ladders, and other tasks. The crux of the legal claim is that they allege that before Wal-Mart cleaned up its act with a new company wide policy issued in 2014, it had a practice of failing to accommodate pregnant employees the same as it did workers with other disabilities.

The former Wal-Mart Associates’ claim contains an employer’s obligation: pregnant employees are entitled to the same accommodations as workers with other disabilities.

Wal-Mart’s spokesman denied the claims, asserted its policies on pregnancy meet or exceed state and federal laws, and pointed out that a separate discrimination policy had long since included pregnancy as a protected status.

But written policies aren’t worth the paper they’re printed on (or the electronic signature pages employees click-thru) if supervisors won’t follow them. One of the plaintiffs, Ms. Woolbright, worked in the Deli department at a Florida Wal-Mart. Her manager allegedly told her that pregnancy was “no excuse” for not doing heavy lifting. After she was injured lifting trays weighing more than fifty pounds, she asked about the company’s pregnancy policies and was fired.

The other named plaintiff, Ms. Borders, alleges that she was reprimanded for asking co-workers to climb ladders and to lift heavy boxes for her while she was pregnant, that she was forced to take an unpaid leave of absence, and that she was paid $2.00 less per hour when she returned.

In their lawsuit, the plaintiffs allege that the class of employees discriminated against on the basis of pregnancy number between 20,000 and 50,000 over the relevant period.

The Basics:

  • Treat pregnancy as a temporary disability.
  • Make reasonable accommodations of any restrictions/limitations, as with other workers.
  • Employers are not required to make the employee’s choice of accommodation.
  • Review your written policies on both disability and discrimination. Pregnancy covered?

Pregnancy discrimination cuts across gender and disability status. But that doesn’t make it any more complicated than other workplace protections. As with other disabilities, find out what work restrictions the employee’s doctor has written. If those can be accommodated, do so. If not, figure out if there are work arounds. Remember, a basic obligation under the Americans with Disabilities Act that employers should also use with pregnancy is to engage in the “good faith” dialogue about accommodations. Acting in good faith goes a long way in any scenario. And you know what else, it’s the law, y’all.

The author, Peter Rutledge, is an Employment Lawyer and Partner at Rutledge Law, Greenville, SC. You can contact him via these channels:
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…Ms. Woolbright, worked in the Deli department at a Florida Wal-Mart. Her manager allegedly told her that pregnancy was “no excuse” for not doing heavy lifting. After she was injured lifting trays weighing more than fifty pounds, she asked about the company’s pregnancy policies and was fired.
–Peter Rutledge, Rutledge Law