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Alex
Alex, Attorney
Category: Business Law
Satisfied Customers: 61
Experience:  Experienced attorney representing businesses and governmental agencies. Start-ups and existing Cos.
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Cindy is 36 years old and working as a sales representative

Customer Question

Cindy is 36 years old and working as a sales representative for a small manufacturer. She and her husband have been married for about 12 years. They have no children because initially they wanted to establish their careers before taking on the obligation of raising a family. Cindy has been trying to get pregnant for a couple of years without success. She and her husband have recently learned the source of the problem is Cindy, and that she needs to reduce her working hours in order to reduce her stress level. She currently works about 60 hours a week and wants to reduce her hours to about 40 or so.    Her employer refuses to change her responsibilities, but says that so long as she gets all her work finished, it is no problem if she works fewer hours per week. Cindy brings a claim under the Americans with Disabilities Act on the grounds that her inability to get pregnant is a covered disability. Discuss the strengths and weaknesses of her case.
Submitted: 5 years ago.
Category: Business Law
Expert:  Alex replied 5 years ago.
<p>Hello. Another interesting question for which I would like some time to properly reply too. I will be back shortly after preparing the pros and cons shortly for you. Attorney Aex</p>
Expert:  Alex replied 5 years ago.
Hello again. The ADA is a Federal law created to protect disabed individuals and workers from discriminatory practices committed by their employers on the job and/or potential employers. In order to apply to an employer the employer must employ 15 or more people. Since you did not mention the number of people at this place of business she may be barred from bringing such an action if the number of employees is less than 15. However, I will assume there are enough and the employer is one of the employers for which the ADA would apply. More importantly, for this analysis, you did not really provide any facts which establish that this woman is in fact disabled. It would seem to me and pursuant to case law in the federal courts, a desire to become pregnant is not a disability. Disability is defined under the statute and it specifically states that a person must satisfy three parts in order to be protected by the ADA. Not every illness or inconvenience of a physical nature would qualify either. Also, this lady does not state or provide us with any actionable facts to pursue an ADA or pregnancy disabilities act claim. As will be more thoroughly discussed herein beow, her wanting to do less is not actionable under the definitions and standards in place. One of the specific prongs is that she have an impairment and the employer must recognize her as imparied. I am pretty sure they would not here. Also, she has to show that her physical life is altered significantly. Again, taking less time from work to get pregnant is not what this law meant in my opinion and according to the discussions which led to the formation of the ADA. Last, she must show that she can perform her job even without the accomadation. Again pregnancy and needing time off in fact stops her from being to satisfy this part of the three part test. Showing up for work on time is a job requirement, thus she would not be able to make a case against the employer for requiring her to meet her scheduled hours. However, in some States and under the recently amended ADA (amended by our thoughtful former President Bush) there might be room to argue that by telling her ok to leave early as long as you do your work the employer amended her job function so that she no longer can be told that an essential function of her job is to stay the whole day. Also, they would have a harder time canning her for leaving early if she could successfully show she was a covered individual and they tried to can her on the basis of not meeting her required job function. Regardless, so while normally pursuant to the ADA a covered employer must provide reasonable accomadations to permit his disabled employee to do her job, becoming pregnant does not fall under the definitions of a disabled individual as codified by the Federal law under the ADA. However, if the lady became pregnant and ill as a result you might have a different story. Finally, we have to take into account the PDA or pregnancy discrimination act which protects women who are pregnant as well. It does not discuss women seeking to become pregnant except as it pertains to granting them coverage for healthcare during a pregnancy and also that an employer may not discriminate for any disability relating to pregnancy and since this employer has given her flexibility it can be construed as being a reasonable accomadation anyway so that her case would fail on that ground alone. Lastly, granting extended leave to a person can be construed as a reasonable accomadation. So to be safe and to avoid litigation costs this employer might wish to allow her to take some leave until she in fact gets pregnant and then come back to her job.   Well, I hope this helps you out and if so kindly hit accept here below. Thank you in advance for hitting the accept button and for any bonus you choose to provide too. Regards, XXXXX XXXXX

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