impairment; (2) whether that impairment affects a major life activity; and (3) whether the major life activity is substantially limited by the impairment." Pacourek v. Inland Steel Co., 858 F. Supp. 1393, 1404 (N.D. Ill. 1994). According to the accompanying regulations to the ADA, a physical or mental impairment is a physiological disorder or condition which affects one or more of a listed group of body systems, including the reproductive system. Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. § 1603.2(h)(1) (1996). Major life activities include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. § 1630.2(i). An individual faces a substantial limitation if she is "significantly restricted as to the condition, manner, or duration under which [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." Id. § 1630.2(j)(1)(ii).
The regulations also offer more particularized guidance regarding pregnancy, stating that "conditions, such as pregnancy, that are not the result of a physiological disorder are not impairments." Id. § 1630.2(h). A number of courts, including one within this district, have relied on this regulation to conclude that a pregnant woman can never claim the protection of the ADA. See, e.g., Johnson v. A.P. Products, Ltd., 934 F. Supp. 625, 1996 U.S. Dist. LEXIS 11593, No. 96 CV 0838 (BDP), 1996 WL 459931, at *1 (S.D.N.Y. August 6, 1996); Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 465, 473 (D. Kan. 1996); Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995); Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119 (D.N.H. 1995); Byerly v. Herr Foods, Inc., 1993 U.S. Dist. LEXIS 4253, No. Civ. A. 92-7382, 1993 WL 101196, at *4 (E.D.Pa. April 6, 1993). But see Kindlesparker v. Metropolitan Life Ins. Co., 1995 U.S. Dist. LEXIS 6164, No. 94 C 7542, 1995 WL 275576, at *1 (N.D.Ill. May 8, 1995) (holding that the ADA does not countenance discharge because a woman must seek medical attention related to pregnancy); Chapsky v. Baxter V. Mueller Div., 1995 U.S. Dist. LEXIS 2609, No. 93-6524, 1995 WL 103299, at *1 (N.D.Ill. March 9, 1995) ("Pregnancy is a disability under the [ADA].").
Other courts, however, have applied a more refined analysis that seems to be applicable to this case. These courts have distinguished between a normal, uncomplicated pregnancy itself and a complication or condition arising out of the pregnancy and have found that, under particular circumstances, the pregnancy-related condition can constitute a "disability" within the meaning of the ADA. For example, in Patterson v. Xerox Corp, 901 F. Supp. 274 (N.D.Ill. 1995), the plaintiff sued her employer for employment discrimination, invoking the ADA. As in this case, the defendant moved to dismiss, arguing that pregnancy is not a disability under the ADA. The plaintiff responded that the disability she claimed was not the pregnancy itself, but the severe back pain that resulted from the combination of pregnancy and a prior condition. The plaintiff alleged that this back pain substantially limited her ability to sit at work for extended periods of time. The court concluded that the plaintiff's allegations that she suffered a recognizable disability under the ADA were sufficient to withstand a motion to dismiss. Id. at 278.
Similarly, in Garrett v. Chicago School Reform Board of Trustees, 1996 U.S. Dist. LEXIS 10194, No. 95 C 7341, 1996 WL 411319, at *2 (N.D.Ill. July 19, 1996), the plaintiff was a pregnant high school student who was threatened with automatic failure of four classes because of pregnancy-related absences. She sued her school district under the ADA. The defendant argued that plaintiff's alleged disability was simply the fact that she was pregnant and that pregnancy did not fit within the statutory definition of a disability. In response, the plaintiff contended that the disability she claimed was not the pregnancy itself but the morning sickness associated with it. This complication had allegedly imposed significant restrictions on her class attendance and therefore qualified as a physical impairment that substantially limited a major life activity. The court found that plaintiff's allegations were sufficient to survive the defendant's motion to dismiss, although factual issues remained regarding the duration and severity of her condition. Id. at *2.
The state of medical knowledge today tends to support the distinction between pregnancy itself and pregnancy-related complications. In 1984, the American Medical Association's Council on Scientific Affairs conceded that "few of our standard medical beliefs about the physical and mental characteristics of pregnancy have any scientific basis." Council on Scientific Affairs, Effects of Pregnancy on Work Performance, 251 JAMA 1995, 1995 (1984), quoted in Laura Schlictmann, Accommodation of Pregnancy-Related Disabilities on the Job, 15 Berkley J. Employment & Labor L. 335, 350 (1994). The Council acknowledged that "the advice given by generations of physicians regarding work during normal pregnancy has historically been more the result of social and cultural beliefs about the nature of pregnancy (and of pregnant women) than the result of any documented medical experience with pregnancy and work." Id. The Council's new recommendation was that most women with uncomplicated pregnancies "should be able . . . to continue productive work until the onset of labor." Id. at 1997.
In contrast to its liberal recommendation with respect to normal pregnancies, however, the article listed a number of "substantial complications" of pregnancy that "may be disabling for further work." Id. These complications include such conditions as preeclampsia, premature rupture of the membranes, vaginal bleeding, threatened abortion miscarriage, risk of premature, low-birthweight babies, incompetent cervix, and a number of others. Id.
The present case does not require that I decide whether an entirely normal, healthy pregnancy can ever constitute a disability within the ADA, and I expressly decline to determine that question. Rather, this case concerns only whether pregnancy-related conditions including spotting, leaking, cramping, dizziness, and nausea can qualify as disabilities under the ADA so that the woman suffering from such symptoms is protected from adverse employment decisions based solely on her symptoms. The present plaintiff has alleged facts from which it might be concluded that she has suffered an impairment of a bodily system -- the reproductive system -- that substantially restricts her capacity to engage in work, a major life activity. While I note that according to the regulations, transitory and non-chronic impairments are not covered by the ADA, 29 C.F.R. § 1630.2(j), the extent and severity of the limitations plaintiff faced are factual questions not properly decided on a motion to dismiss.
Defendants raise the misplaced contention that plaintiff has not alleged that she was substantially limited in her ability to work, based on the allegation in her original complaint that she was "nonetheless able to perform the essential requisites of her job." (Defendant's Memorandum of Law in Support of Motion to Dismiss, p. 4, quoting Complaint, P 1). The defendant's argument is disingenuous because it disregards the fact that an ADA plaintiff's prima facie case must include an allegation that she is able, with or without reasonable accommodations, to perform the essential functions of her job. See 42 U.S.C. §§ 12111, 12112 (1995). The statute explicitly states that "reasonable accommodations" can include "job restructuring, part-time or modified work schedules." Id. § 12111 (9)(B). Thus, plaintiff's complaint can be read to allege that the complications she experienced constituted physical impairments that restricted her ability to work in the absence of reasonable accommodations, but that with a flexible schedule equivalent to that offered to nonpregnant employees who were similarly incapacitated, plaintiff would have been able to perform the essential duties of her position. (Amended Complaint, P 29). These allegations are sufficient to make out a prima facie case under the statute.
Finally, I note that the ADA offers plaintiff a second avenue to establish a "disability." Plaintiff may argue that although she was not in fact substantially impaired, she was regarded by EHG as suffering from a disability. See 42 U.S.C. § 12102(2)(C) (1995). This more subjective definition of disability is available to a plaintiff who suffers employment discrimination not on the basis of an actual disability but on the basis of myths, fears, and stereotypes that lead her employer to the erroneous conclusion that she is substantially impaired. Greenberg v. New York State, 919 F. Supp. 637, 641 (E.D.N.Y. 1996) (citing Cook v. Rhode Island Dep't of Mental Health, Retardation & Hosps., 10 F.3d 17, 23 (1st Cir. 1993) and 29 C.F.R. § 1630, app.) ("Thus, 'if an individual can show that an employer . . . made an employment decision because of a perception of disability based on myth, fear or stereotype, the individual will satisfy the "regarded as" part of the definition of disability.'"). Plaintiff's complaint therefore might alternatively be construed to make out a claim under the more subjective prong of the disability definition.
For all of the above reasons, I cannot conclude that plaintiff can prove no set of facts that would entitle her to relief under the ADA. Defendant's motion to dismiss plaintiff's ADA claim is therefore denied.
III. Plaintiff's Claims of Disability Discrimination under the City HRL and State HRL3
Defendant EHG asserts that plaintiff cannot establish a claim for disability discrimination under the City HRL and State HRL because she cannot make the required demonstration that despite her condition she was reasonably able to perform her duties. In particular, defendant cites Clark v. Cargill, Inc., 206 A.D.2d 870, 615 N.Y.S.2d 210 (4th Dep't 1994) for the proposition that:
a physical condition that prevents an employee from reporting to work and that requires an employee to miss an unacceptably high number of days of work is not a disability within the meaning of Executive Law § 292(21).
615 N.Y.S.2d at 211. Because plaintiff acknowledges that defendant Durham told her she was being terminated for taking too many days off, defendant contends that she has conceded that she was not reasonably able to attend to her duties and therefore cannot state a claim under the State HRL and City HRL.
In McEniry v. Landi, 84 N.Y.2d 554, 644 N.E.2d 1019, 620 N.Y.S.2d 328 (1994), the New York Court of Appeals indicated that the inquiry into whether a particular employee was able to perform her duties despite her disability is necessarily an individualized one. 620 N.Y.S.2d at 331. The court indicated that the inquiry did not end with the defendant employer's assertion that the plaintiff was fired because his alcoholism prevented him from coming to work "on an inordinate number of occasions," but rather began there. Id.
In the present case, plaintiff does not admit that she was taking too many days off but asserts that this was the reason proffered by defendant in justification of its decision to terminate her. The plaintiff does allege that she was able to perform the essential responsibilities associated with her position; she also alleges that defendant EHG accommodated other incapacitated employees who required a similar number of days off for different ailments. (Amended Complaint, P 29). Accepting these allegations as true, I conclude that plaintiff is not barred from stating a claim under the State HRL and City HRL. Plaintiff may be able to prove that despite her absences she was able to keep up with the demands of her position. Further, plaintiff may be able to demonstrate that her absences were not excessive in light of defendant's alleged policy of accommodating other incapacitated employees with similar attendance records. In light of these possibilities, I cannot at this time say that plaintiff can prove no set of facts in support of her claim, and defendant's motion to dismiss plaintiff's claims of disability discrimination under the State HRL and City HRL is therefore denied.
IV. Individual Liability under Title VII and the ADA
Defendant EHG moves to dismiss the plaintiff's first and second claims for relief against individual defendants Heslin and Durham on the grounds that individuals are not subject to liability under either Title VII or the ADA. Because I agree with defendant that, under the Second Circuit's analysis, neither statute provides for individual liability, defendant's motion to dismiss on this ground is granted.
As even plaintiff acknowledges, the controlling case with respect to individual liability under Title VII, Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), provides that individual defendants -- even those with supervisory control -- may not be held personally liable for alleged violations of Title VII. Id. at 1313. The Second Circuit's reasoning in Tomka is equally applicable to the question of individual liability under the ADA as well.
The Tomka court noted that Title VII defined "employer" as
a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person.
Id. (quoting 42 U.S.C. § 2000e(b)). The court agreed with the Ninth Circuit that it was "inconceivable" that Congress would define employer in a way intended to protect small businesses while simultaneously permitting civil liability to run against individual employees. Id. at 1314 (citing Miller v. Maxwell Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993), cert. denied, 510 U.S. 1109, 127 L. Ed. 2d 372, 114 S. Ct. 1049 (1994)). The court concluded that the inclusion of the word "agent" in the definition of employer was meant to impose liability on the employing entity in accordance with principles of respondeat superior rather than to expose individuals to the financial burdens of defending against employment discrimination suits.
While the Second Circuit has not yet addressed individual liability in the context of an ADA claim, the court's holding in Tomka clearly mandates the rejection of personal liability under the ADA as well. The ADA defines "employer" in terms identical to those appearing in Title VII:
The term "employer" means a person engaged in an industry affecting commerce who has 15 or more employees . . . and any agent of such person.