You’ve come a long way, baby…But how about Mom?

How long does it take for caselaw to make its way into the mainstream of society and truly become the rubric by which individuals (and hence corporations and governmental agencies) conduct themselves? Too long–fatally too long, in some cases. Eradicating firmly held–but politically incorrect, morally incorrect, and legally incorrect–notions, standards, and practices is, to say the least, a challenge. This is certainly true of women who have been fighting against sex-based pregnancy discrimination.

In 1978, Congress passed the Pregnancy Discrimination Act (“PDA”), which amended Title VII of the Civil Rights Act of 1964 and prohibited sex discrimination on the basis of pregnancy. The PDA specifically prohibits sex discrimination on the basis of pregnancy, and requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” In 2015, the U.S Supreme Court decided the seminal pregnancy discrimination case of Young v. UPS. In Young, the plaintiff was a part-time driver for the United Parcel Service. When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. However, UPS required drivers like Young to lift 70 pounds, and told Young that she could not work while under the lifting restriction. UPS, though, provided accommodations in terms of lifting restrictions to workers who had been injured on the job.
Young brought a lawsuit against UPS under the PDA. The Court held that a plaintiff who alleges that the denial of a reasonable accommodation constituted disparate treatment under the Pregnancy Discrimination Act may prevail by showing that the “employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.”  A plaintiff may show that a significant burden exists by “providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” For example, a significant burden may exist when an employer (like UPS) accommodates nonpregnant, injured employees with lifting limitations, but fails to accommodate pregnant employees with lifting limitations. An employer’s asserted nondiscriminatory reason for failing to accommodate pregnant workers is not “sufficiently strong” if it is based solely on a claim that it is “more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.”
In response to the Court’s decision in Young, the EEOC revised its enforcement guidance concerning pregnancy discrimination and stated that, “[a]n employer is required under Title VII to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability.” For example, an employer may not restrict light-duty assignments to only those persons who areinjured on the job, the EEOC explained. Nor may an employer compel a pregnant employee to take leave because she is pregnant—as long as she is able to perform her job. This applies, even if an employer believes (albeit paternalistically) that it is acting in the pregnant employee’s best interest.
In an ideal world where employers abide by nondiscrimination laws, the Supreme Court’s ruling and the EEOC’s guidance would mean that pregnant workers now have equal footing with nonpregnant workers when it comes to accommodations. Think again. Simplicity Ground Services, P.C., an airline-ramp and cargo-handling company based in Detroit, forced a pregnant employee (Bishop) onto unpaid leave because of her pregnancy. Bishop was a tow team driver with no lifting requirements in her job description. When Bishop informed Simplicity that she was pregnant and had a 20-pound lifting restriction, Simplicity directed Bishop to have her physician remove the lifting restriction, and attempted to force Bishop to sign an amended job description which imposed a 70-pound lifting requirement. Bishop refused to do either. In response, Simplicity forced Bishop to take unpaid leave for the duration of her pregnancy. Simplicity had also forced other pregnant employees to take unpaid leave because of their pregnancies and refused to accommodate their lifting restrictions with light-duty work. Simplicity, had, however, granted light-duty work to non-pregnant employees. On March 27,2018, the EEOC brought suit against Simplicity alleging violations of the PDA.
Simplicity is not the only company which flagrantly violates the PDA. PruittHealth, a Raleigh, North Carolina, Nursing and Rehabilitation Center, refused to accommodate a 20-pound lifting restriction for a pregnant Certified Nursing Assistant (“CNA”), though it routinely accommodated the temporary restrictions of nonpregnant CNAs who were injured at work. Rather than granting the accommodation, the company’s assistant director gave the CNA the Hobson’s Choice to either retire or be fired. This certainly was not a situation where the employer had a “sufficiently strong” legitimate reason for not granting the accommodation to the pregnant CNA. In fact, “the company had lifting devices and transfer belts available to help lift patients and did not prohibit CNAs from seeking the assistance of co-workers to lift patients manually.” On April 18, 2018, the EEOC brought suit against PruittHealth alleging violations of the PDA.
Refusing to accommodate pregnant employees often results in devastating consequences. Sarah Coogle was a correction officer with the California Department of Corrections & Rehabilitation. After becoming pregnant in December 2016 and being concerned that she may lose her child if she had to forcibly subdue a prisoner, she asked the Corrections’ Department for the reasonable accommodation of working in a less strenuous position with limited inmate contact where she would not have to run. In response, the Corrections’ Department told Coogle that she would either have to accept a demotion with a two-thirds cut in pay (with an associated loss of her seniority and benefits), or take leave as an accommodation. When Coogle was seven months pregnant, she ran to intervene an inmate fight and fell down. She was taken by ambulance to a hospital for abdominal pain and directed not to work for the duration of her pregnancy. However, just a few days before her due date, she lost her child from a placental rupture—which is commonly caused by a trauma such as a fall. Coogle sued the Corrections’ Department in the Superior Court of Kern County, California, alleging violations of California’s Fair Employment & Housing Act, which makes it unlawful for employers to fail to provide reasonable accommodations for the known physical and mental disabilities of employees. Depending on their condition, pregnant women may have temporary disability status and thus come under the protections of laws protecting the rights of disabled persons, such as the Americans with Disabilities Act (“ADA”). As Coogle’s attorney so aptly stated,“No man has to make the choice offered to Plaintiff of choosing between family and career. No man has to give up his pay to ensure the safety of his children.Working in a correctional facility is an inherently dangerous job and no care or attention was given to protect the life of her child.”

Each of these three cases offers the possibility of rulings that will add to the growing body of caselaw protecting the rights of pregnant employees—and their unborn children. To those pregnant employees who need workplace accommodations, do not assume your employer will either know or abide by the PDA and/or the ADA. Instead, you may wish to seek the assistance of a lawyer who is able to firmly remind your employer of his or her obligations under those Acts and take suitable action if your employer fails to do so. Kalijarvi, Chuzi, Newman & Fitch has significant experience handling pregnancy discrimination cases. As these cases demonstrate, there is too much at stake to not do so.

Written by Valerie A. LeFevere

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