Do pregnant women qualify for disability accommodations? Until now, court decisions taken as a whole have responded to this question with a resounding, “Maybe.” Two recent decisions in Khan v. Midwestern University out of the United States District Court for the Northern District of Illinois examine the issues here and here.
The facts (combined from both decisions)
Ayesha Khan enrolled as a medical student at Midwestern University in fall 2010. 3.5 years into the program, in early 2013, Ms. Khan became pregnant. Like many women, Ms. Khan suffered from physical ailments during her pregnancy, including
- Fatigue,
- Nausea,
- Gestational diabetes, and
- Clinical depression and anxiety disorder (due to pregnancy and other personal circumstances).
Ms. Khan asked the University and her professors for accommodations—specifically, adjustments to her class schedule, rotations, and exams. She provided a letter from her doctor, who stated that Ms. Khan “was unable to fulfill the academic responsibilities due to her medical issues.” The University agreed too many of the requested accommodations and, in the middle of the semester, Ms. Khan took a two-week medical leave before returning to her coursework.
Yet, Ms. Khan alleges, not all of her accommodations were granted. In particular, she alleges that her Pharmacology professor responded to her request by criticizing her for being “too busy making babies” and implying that she could not pass his class because being pregnant was a full-time job that required her to stay home and play mommy. At the time of their conversation, Ms. Khan had failed seven out of nine exams and was, in fact, failing the course. Indeed, the professor denies that the two spoke about anything other than her academic performance and the target grades Ms. Khan needed to pass the course.
Still, the professor did allow Ms. Khan to postpone an exam. But she arrived thirty minutes late to her final because of traffic. Upon arrival, she asked to take the exam at a later date, as she was experiencing pregnancy-related anxiety, nausea, and lightheadedness.
The professor denied her request. Ms. Khan failed the exam—and the course.
In addition to Pharmacology, Ms. Khan failed two other courses during the 2013 spring semester. She was dismissed from the University. Ms. Khan had previously failed other classes and had been placed on academic probation. Following her unsuccessful appeal, the University reaffirmed Ms. Khan’s dismissal because of her “history of course failures.”
Ms. Khan’s claims
Ms. Khan filed suit against Midwestern University alleging disability discrimination under Section 504 of the Rehabilitation Act for the University’s failure to provide reasonable accommodations. Ms. Khan made this claim even though courts have generally held that pregnancy—and pregnancy-related complications—do not qualify as “disabilities.”
The claim was also unusual because, typically, a student alleging pregnancy discrimination would do so under Title IX. Paradoxically, perhaps, Ms. Khan initially mentioned a Title IX claim in her second amended complaint, but then “made clear in her response brief that she is not pursuing that claim,” resulting in a dismissal of any Title IX claim.
Ayesha Khan vs. Midwestern University (2015)
The district court was left to rule initially only on the viability of Ms. Khan’s disability claim. To state a successful discrimination claim, Ms. Khan needed to allege that she was (1) an individual with a disability; (2) otherwise qualified for the benefit sought; (3) discriminated against solely because of her handicap; and (4) discriminated against by an institution receiving federal funding. Under the Rehabilitation Act, a disability is “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).
The University argued that Ms. Khan, although pregnant, was not “an individual with a disability” because her pregnancy-related complications did not create a disability. Ms. Khan’s “impairment” (her pregnancy) was temporary, so her educational opportunities had not been “substantially” limited.
But the court rejected this argument. Instead, it applied precedent from ADA and Title VII case law to Ms. Khan’s claims. The court concluded that the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.”
In short, the court found that the temporary nature of a pregnancy did not bar Ms. Khan’s claim under Section 504 of the Rehabilitation Act, and her suit was allowed to continue.
Ayesha Khan vs. Midwestern University (2016)
However, looking at the evidence later produced by the parties (rather than just at Ms. Khan’s allegations), in December 2016, the district court granted the University’s motion for summary judgment, rejecting Ms. Khan’s claims.
The court found that Section 504 protects otherwise qualified individuals from disability discrimination. To be considered as “otherwise qualified,” federal law required Ms. Khan to meet the “academic and technical standards requisite to admission or participation in the school’s education program or activity.” Given the court’s deference to an institution’s academic determinations, the court found that no reasonable factfinder could find Ms. Khan “otherwise qualified” to continue her medical school coursework; she would not have remained enrolled, even without her alleged disabilities.
Even though summary judgment was ultimately granted to the University, the district court continued to assess Ms. Khan’s pregnancy as a disability. At no point did the court back down from its original holding: pregnancy or pregnancy-related complications can qualify as a disability under Section 504 of the Rehabilitation Act. The court’s second decision reinforced its stance that the Act is not restricted to long-term or permanent disabilities.
In January 2017, Ms. Khan appealed this decision to the United States Court of Appeals for the Seventh Circuit. That appeal remains pending.
What this means to you
The Khan case signals a new avenue for pregnant students to allege discrimination—adding disability protections to those already extended by Title IX guidance—and may shift the lens through which the law views pregnant students. Although the vast majority of courts have not considered pregnancy to be a disability in student cases involving pregnancy discrimination claims, drawing from disability case law could support this result in future cases. In working with pregnant and parenting students, institutions should incorporate disability considerations into their analyses.