The Newest 'Disability'

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On a straight 3-2 party-line vote July 14, the Equal Employment Opportunity Commission voted new \

The Americans with Disabilities Act, passed in 1990, has always had the potential to morph into a legal monster for employers. In 2008 Congress amended and expanded the act substantially, arguing that the Supreme Court's interpretations of "disability" were too narrow. Then the Obama Administration arrived, and you know what that means: Who needs Congress?

On a straight 3-2 party-line vote July 14, the Equal Employment Opportunity Commission voted new "enforcement guidance" rules, which define pregnancy as a workplace disability.

Even after the 2008 amendments, the ADA at no point defines pregnancy as a "disability." To end-run this fact, the agency discovers pregnancy's "impairments." The EEOC's guidelines argue, "Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities." Morning sickness, for example, would become a qualifying impairment under the ADA.

Thus the EEOC is piling one radical legal interpretation (discarding the ADA's clear intent to help the truly disabled) upon another (granting protections to pregnant women, who aren't covered under the ADA).

As one of the two Republican commissioners, Constance Barker, wrote in a May memo to her colleagues, these legal gymnastics represent "an entirely new legal interpretation that is unsupported by Congressional intent or court interpretation."

The EEOC is well aware that it's treading on uncertain legal ground. In May, Solicitor General Donald Verrilli counseled the Supreme Court not to accept certiorari on Young v. United Parcel Service, a case that addresses the rights of a pregnant woman who couldn't perform her job functions and asked the shipping company for special treatment. Mr. Verrilli told the Justices that the EEOC was working on "new enforcement guidance" and so the Justices should wait until the bureaucrats weigh in.

On July 1, the Supreme Court took the case. Two weeks later, the Obama EEOC issued its pregnancy guidelines. Effectively, the Obama Administration is using the EEOC to deliver marching orders to the High Court.

These strategies don't just happen. On July 20 foremost Obama White House adviser Valerie Jarrett published a piece on CNN's website promoting the EEOC's pregnancy guidelines.

Pregnancy is not unprotected under federal law. The 1964 Civil Rights Act protects workers from discrimination on the basis of "race, color, religion, sex, or national origin." And the 1978 Pregnancy Discrimination Act amended that law to protect, yes, pregnant women.

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