The ADA does not apply to pregnant women. Workplace discrimination against pregnant women is prohibited by Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA). This law was construed by the U.S. Supreme Court in the landmark case of International Union v. Johnson Controls. [International Union v. Johnson Controls, 499 U.S. 187 (1991).] The decision held that fetal protection policies are against federal law. More generally, the Court found that employers cannot treat women differently because they may become pregnant, nor may they treat pregnant women differently solely because of their pregnancy. Under federal law, pregnancy must be handled like any other illness or disability. This applies to medical and disability insurance, leave policies, and fitness-for- work decisions. As with the ADA, the employer’s only appropriate criterion is whether the pregnancy affects the woman’s ability to do the job.

The Johnson Controls case was highly controversial because it pitted the job rights of the pregnant worker against the health of the fetus. Irrespective of an employer’s emotional or religious views on protecting a fetus, injuring a fetus can be catastrophically expensive. Under current law, a fetus is a third person for workers’ compensation purposes. This means that there is no cap on the damages that may be recovered from the employer. A woman may not absolve the employer of this liability by signing a waiver because the right to compensation belongs to the baby, not to the mother. The most difficult problem is that many women do not realize that they are pregnant quickly enough to prevent exposure during the critical first trimester. This led employers to deny women with reproductive capacity the right to work in certain jobs, although there has been little objective evidence of work- related fetal injuries.

The Johnson Controls case found that the employer had no independent right to protect the fetus. If a woman chooses to expose her fetus to workplace toxins, the employer cannot interfere. The majority opinion asserted that federal workplace safety laws might prevent lawsuits against the employer if the fetus was injured in such a situation, but this has not been the case for other workplace safety problems. The Court also reiterated the popular misconception that workplace toxins pose the same reproductive risks to men as to women. This ignores the issue that most of the known risks are due to in utero exposure.

Companies who employ women in positions that might endanger a fetus must warn women of the risk and provide alternative employment opportunities if the woman becomes pregnant. A physician who believes that a patient might be endangering her fetus by the work she does has the responsibility to warn her. This belief must be based on scientific evidence. Physicians who care for women in their childbearing years should realize that not all chemicals are dangerous to a fetus. The current tendency to worry pregnant women with potential but minimal risks has the effect of discrediting warnings of serious risks such as smoking. Although there are occupational exposures that endanger a fetus, the more common risk is to the mother because of her reduced agility and shifting center of gravity.

A woman may be put on leave or alternative duties if the pregnancy makes her physically unable to fulfill her regular duties or if the work might endanger her health or the public safety. An airline was allowed to limit flights by pregnant women because their condition impaired their ability to function effectively in an emergency. Such decisions must be made on sound medical and workplace safety grounds. In the rare circumstances where such restrictions would be appropriate, employers should find alternative employment when possible. A pregnant telephone company employee may not be able to climb poles safely by the time she is 15 weeks pregnant, but she can do indoor installations safely until she goes into labor.

Physicians involved in obstetric care of women in the work force should make a clear distinction between social issues and medical decisions. A healthy woman with an uncomplicated pregnancy may want a maternity leave that extends for three months after the baby is born. Her company may offer a six-week leave. It is generally accepted that the normal physical disability associated with pregnancy and delivery should resolve by six weeks. It would not be legitimate to give this woman a medical excuse from work for the second six weeks postpartum unless she had a specific medical indication for such leave. No matter how strongly a physician feels about issues like bonding and breast- feeding, these are social issues that do not bear on the woman’s physical fitness for work.