Working for Justice

Lawyering While Pregnant

I’m writing this from my office, high above a large city in the northeast, where I’m sitting, hopped up on a variety of medications designed to combat the violent nausea and sometimes blinding headaches that come, for me, with being almost ten weeks pregnant. At the moment, the meds are working ok, as they do about half the time, leaving me feeling more or less like someone near the tail end of a bad flu. When they don’t work at all, I’m fortunate enough to have a handful of vacation days left, which I typically spend lying in bed at home, worrying about all the work piling up in my absence and how few vacation days I have left.

This is my second pregnancy, and in some ways easier than the last – though I am, on balance, quite a bit sicker, my job situation is also more stable. Now, instead of worrying about getting fired every day, I just deal with the fundamental incompatibility between the expectations of my job and my current state of human frailty. A few months ago, one of my colleagues – known for the fairly relentless work ethic she imposes on herself and others – suggested that I should consider adopting a second child so that I wouldn’t get so sick again. I’m pretty sure she meant it in a helpful and sympathetic way, and honestly, I think about it every day because my current situation feels so impossible. My hour-long trip each way from home to the office is spent curled up in as close to a ball as one can manage on public transportation, hiding behind sunglasses and clutching my pounding, sweating head, as though I were a heroin addict who had unwisely chosen a public seat on the morning commute as my platform to kick the habit. When I get to work, I usually lie on the cool bathroom floor for about 10 minutes, collecting myself for the day at hand. I’m trying not to disclose my pregnancy too widely yet, having had a miscarriage a few months previously, but my inability to work my usual 12-hour days for the last five weeks has necessitated some degree of disclosure. I don’t want to give the appearance of having simply decided that I prefer a forty-hour week, something all of us at my firm are regularly reminded that we have not signed up for.

For a pregnant person who works, I am one of the very, very lucky ones. I have paid sick and vacation days and excellent health insurance, which for me (if not for my family) is well-subsidized by my employer. I have supervisors who value and are willing to accommodate me to the extent humanly possible. I work in an air-conditioned office with a water filter and free soda and pretzels. My colleagues are lovely and understanding. I like my work, which involves no manual labor and plenty of sitting in comfortable chairs. My billable hours minimums are manageable, and I won’t get fired for not meeting or exceeding them for a month or two. And I make enough money that my spouse can stay home with our small child, and we can readily afford things that make even a few months of the pregnancy flu tolerable, like air conditioning and a modest amount of takeout.

I also live in one of the very few cities in the country whose laws actually require employers to accommodate the needs of ordinary (as opposed to “disabled”) pregnant employees, even without a doctor’s note. This is huge. While Title VII – the federal law barring discrimination in the workplace – was amended in 1978 to clarify that discrimination against pregnant people counts as gender discrimination, federal law arguably requires nothing in the way of accommodations for non-disabled pregnant people. In my city, by contrast, as of this year, employers with more than four employees are required “to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth. Such a reasonable accommodation may include bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor, among other things.” The employer must provide the requested accommodation unless it can prove that the accommodation presents an “undue hardship” or can show that even with reasonable accommodation the pregnant employee would be unable to “satisfy the essential requisites of the job.”

The law also requires that all new employees and current employees in my city be given notice of the law and its requirements. Based on some recent conversations, including one with a very pregnant BigLaw associate, I am not optimistic that this is really happening. So I’m thinking that working pregnant people might have to take this message on the road. The last time I was pregnant, my pregnancy seemed to run about parallel with one of the cashiers at a drugstore near my office. Every time I bought something there, I noticed her standing behind the counter, no water or chair in sight, often working late into the night. Next time, I might just start a conversation about this great new law, and what it means for working pregnant people like us.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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