Since when are pregnant women entitled to anything less than fairness and equality?
On November 8, The New York Times ran this article; Pregnant Lawyer Requests Delay in Corruption Retrial. This story is a perfect example of discrimination against the disabled. The victim is Deborah Misir, a 42-year-old woman, who has not received appropriate accommodations by the U.S. attorney’s office for her pregnancy.
The Americans with Disabilities Act (ADA) holds that any qualifying legal disability requires accommodation. Pregnancy has long been recognized as a qualifying disability. The fact that Misir’s pregnancy is “high-risk” should not even matter – although it does make the inaction of her request all the more despicable.
The first legislation to establish a legal standard that employers are not permitted to discriminate against a disable person in matters related to their employment was the Rehabilitation Act of 1973. The man responsible for this law was Senator Hubert Humphrey.
In 1990 Congress enacted landmark civil rights legislation. The ADA prohibits discrimination against persons with disabilities in all aspects of the employment process.
According to this Act, a disability exists if an individual meets any one of the following three criteria. A disability exists if there is a physical or mental impairment that substantially limits one or more major life activities. A disability requires that there be a record of an impairment that substantially limits the individual in the performance of major life activities in the past from which the individual has recovered in full or in part. Finally, if the individual has been regarded as having an impairment that substantially limits major life activities.
Reproduction is considered a major life activity, and therefore, pregnancy meets the qualifying standard as a disability that is protected by the ADA. In 1998 the case of Bragdon v. Abbott further solidified the precedent for reproduction qualifying as a major life activity. In this case, Sidney Abbott went to her dentist for a cavity filling. Incidentally, she was infected with HIV but was asymptomatic. Dr. Bragdon agreed to do the filling but said it would need to be done in a hospital and Ms. Abbott would be responsible for costs. She declined the treatment and sued Dr. Bragdon for violating her rights under the ADA.
The court ruled in favor of Ms. Abbott. They opined that asymptomatic HIV is a disability under the ADA as a “physical impairment that limits one … of Ms. Abbott’s major life activities.” The major life activity was reproduction (i.e. threat to partner; infection of child). It seems that the U.S. Attorney’s office needs to review the ADA legislation and make appropriate accommodations for Ms. Misir.
Author: Helen M. Farrell, M.D., psychiatrist with Harvard Medical School
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