In the Trenches: Carrying the weight of a career and a pregnancy

In this edition of In the Trenches, Acme learns a lesson on how to approach pregnant employees’ accommodation requests.

By Lisa Milam-Perez

Sandy Strong had always been treated as an equal by the guys in Acme’s warehouse. They admired her work ethic and her ability to “keep up with the boys,” as she’d brag, loading enormous boxes of product onto outgoing delivery trucks. The two other female warehouse employees worked in the office scheduling and tracking shipments, but Sandy balked at the thought of a desk job.

“My job is my workout,” Sandy often said. “I don’t have to go to the gym to lift heavy stuff.” She loved her job and her coworkers. And when Sandy finally became pregnant after years of trying to conceive–and an extended leave of absence for in vitro fertilization–Sandy’s coworkers offered to help in any way they could.

One day, shortly into her second trimester, Sandy arrived at work following her monthly OBGYN appointment and went straight to the office of Frank Fairmind, the warehouse supervisor. “My doctor said I can’t lift anything heavier than 20 pounds for the rest of my pregnancy,” Sandy told Frank, handing over a doctor’s note and adding: “I’m still gonna work the warehouse but I’ll just have the guys load the heavy orders for now.”

“That’s not gonna work, Sandy,” Frank said. “You can’t make your coworkers do all the heavy lifting–that’s most of the job. I’d put you in the office doing scheduling for the time being, but we don’t really need you there. Let me see what HR says. I know they send the light-duty people to packaging.” Sandy was resistant about being transferred to another job for the duration of her pregnancy, but she put her fate in Frank’s hands as he picked up the phone to call Weil Yerout, Acme’s disability and leave administrator.

Frank came up empty-handed. Weil made it clear that Acme policy was to give light-duty assignments only to employees who had sustained injuries on the job or who had disabilities requiring accommodation under the Americans with Disabilities Act (ADA). Sandy didn’t fit either category.

Since Sandy couldn’t do her warehouse job with the lifting restriction in place, Weil suggested that Sandy apply to other open positions at Acme that didn’t require lifting. Meanwhile, he said the company might be able to put her on an administrative leave of absence so that, if there was a warehouse job open when she was able to work unrestricted, she could apply for her old position and retain seniority. (Sandy had already used up her FMLA leave.)

This was cold comfort to Sandy, who was losing her job and her medical insurance. She filed suit contending that Acme violated the Pregnancy Discrimination Act (PDA) by flat-out refusing to give her a light-duty assignment even though Acme accommodates lifting restrictions for disabled workers or those injured on the job.

Will Sandy's lawyer be eager to take her call?

Acme could be in trouble with this one. Sandy may have a viable PDA suit and, although she didn’t raise it, an ADA claim too. While the company might have been on sound legal footing in the past, two legal developments leave its light-duty policy, which excludes pregnant employees, on shaky terrain.

First, the ADA Amendments Act, which was passed in 2008, expanded the ADA’s reach to encompass pregnancy-related limitations. Consequently, Sandy may well be considered “disabled” within the meaning of the ADA if her pregnancy, temporary though it may be, substantially limits one or more of her major life activities. In that case, Acme would have to provide her with a reasonable accommodation (such as a light-duty assignment, perhaps) just as it does for workers with other ADA-covered disabilities.

Moreover, the PDA requires employers to treat pregnant employees the same as non-pregnant employees “similar in their ability or inability to work.” Granted, this isn’t a situation where Sandy has direct evidence of pregnancy discrimination. (That would be the case if Acme had unceremoniously shown her the door as soon as it learned she was pregnant, which didn’t happen here.)

To avoid liability under the PDA, it used to be enough that Acme treated its pregnant employees without work-related injuries or ADA disabilities just the same as its non-pregnant employees without work-related injuries or ADA disabilities: in both cases the company refused light-duty work pursuant to its neutral, pregnancy-blind company policy.

However, based on a March 2015 decision issued by the U.S. Supreme Court in a lawsuit against UPS, an employer may have to provide the same accommodations to disabilities caused by pregnancy as it provides to disabilities from other causes that have a similar effect on one’s ability to work. If Sandy could show that Acme accommodated most non-pregnant employees with lifting restrictions (including employees who were injured on the job or suffered from other ADA disabilities) while categorically failing to accommodate pregnant employees with lifting restrictions, she may have a strong PDA claim.

Acme would be afforded the chance to offer a legitimate, non-discriminatory reason for refusing to accommodate pregnant employees. But it’s not enough simply to say that it would be more costly or inconvenient to add pregnant workers to the category of employees entitled to light-duty assignments; Acme would have to establish that it would be a “substantial hardship” for pregnant workers to be covered under its policy.

That’s a fairly high hurdle. Indeed, as the Supreme Court asked in the UPS case, “why, when the employer accommodated so many, could it not accommodate pregnant women as well?” If Sandy has evidence that Acme’s policy imposes a significant burden on pregnant workers, and can show that the company’s reasons for the policy aren’t strong enough to justify that burden, that would create an inference of intentional pregnancy discrimination, and her case goes to trial.

Acme should revisit its light-duty policy and consider whether it’s justified in excluding pregnant employees. (By the way, even though UPS won the first two rounds in the lower courts, the company subsequently relented and voluntarily changed its policy–even before the Supreme Court writing was on the wall.)

Further, as a general rule, Acme should approach pregnant employees’ accommodation requests just as it does employees with other disabilities: initiate the “interactive process” pursuant to the ADA to determine whether the company can accommodate the employee without undue hardship. While the ADA doesn’t usually require an employer to create an entirely new position, if the company creates light-duty positions for employees with on-the-job injuries, it might well have to do so for pregnant employees too, under the PDA.

Also, depending on where Acme’s warehouse is located, the company must heed state or local laws that afford even greater protections to pregnant employees.

Lisa Milam-Perez, J.D., labor and employment analyst, Wolters Kluwer Law and Business, (773) 866-3908

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