Regardless of whether a denial of a request for light-duty work violates federal or state law may depend on how the employer handles light-duty work in general. If there are rules that favor such work for non-pregnant employees but make it more difficult for pregnant employees to obtain, you may have a valid claim of illegal discrimination.
The recent case of a New Jersey police officer brings up issues that are probably common in many workplaces. Kathleen Delanoy started working for Ocean Township in 2003. While working as an officer, she became pregnant. In July 2011, she notified her superiors of that fact and asked for light duty work, according to her complaint.
Before that date, the police department didn’t have an official, written light-duty policy concerning an officer who had a non-work-related injury or illness. The department’s practice was to allow such work without an officer having to use up paid vacation or sick time prior to working light duty. After asking for light-duty work, the complaint claimed the department told Delanoy it didn’t have a light-duty policy for pregnant officers (she was one of two female officers out of a total of more than 50).
The department then created official written light-duty policies that discriminated against pregnant officers. The defendant created two policies, one concerning “maternity assignment” and the other for “light/modified duty.” The two were similar in that they required the use of existing paid time off before being able to work on light duty.
- The critical difference between the two was that the chief of police, Antonio V. Amodio, had the ability to waive the leave-exhaustion requirement for non-pregnant officers based on a number of issues, but he could not waive it for pregnant employees.
- Under the policies, non-pregnant officers suffering non-work-related injuries or illnesses might not need to use paid time off before working light duty, but pregnant officers were required to use that paid time off first.
Pursuant to the new policy, Delanoy was told she couldn’t have light-duty work until she used up available paid time off. She later filed a complaint with the Equal Employment Opportunity Commission (EEOC), and she filed a lawsuit in state court in 2013.
- Delanoy claimed that she was discriminated against because she was a pregnant woman and that she also suffered retaliation by being ostracized in the workplace.
- The complaint also included an allegation that the police department violated the federal Americans with Disabilities Act (ADA) because the EEOC investigation found that employees’ medical records were kept with personnel files, not separate from them as required by the law.
The case was settled in 2015 when Delanoy accepted $51,000.
The U.S. Supreme Court, Light Duty, and Pregnant Employees
The issue of light or modified duty came to the U.S. Supreme Court in 2014 with a case involving a pregnant UPS driver, Peggy Young. Because of her condition, her physician stated that Young shouldn’t lift more than 20 pounds, though normally, drivers may be required to lift up to 70 pounds. Ms. Young was denied an accommodation, and she sued in federal court.
Through the discovery process, Young learned UPS would ease lifting requirements for workers who were injured on the job, who were considered disabled under the ADA, or who had lost driver certifications from the Department of Transportation. Young claimed she was being discriminated against because she was not being accommodated like these other employees. The trial court dismissed her case, claiming others being accommodated were too different from her and not “similarly situated” as spelled out in prior discrimination cases. An appellate court agreed with the dismissal.
The U.S. Supreme Court reversed the lower decisions and sent the case back to trial because factual issues needed to be resolved. The majority of the justices had problems with legal arguments by both sides. The court reached the following conclusions:
- Employers who provide one or two workers with an accommodation are not required to provide similar accommodations to all pregnant workers, regardless of any other criteria.
- The law does not require employers to treat pregnant employees the same as any other persons who are similar in their ability or inability to work.
- An employer can implement policies that are not intended to harm members of a protected class, even if that implementation may harm those members, as long as the employer has a legitimate, nondiscriminatory reason for doing so.
The court spelled out what needed to be shown by a plaintiff such as Young:
- A plaintiff trying to prove disparate treatment may make out a “prima facie case” (the facts required to avoid dismissal by the court an early stage, like Young’s case) by showing that she belongs to the protected class (pregnant females), that she sought an accommodation, that the employer did not accommodate her, and that the employer accommodated others “similar in their ability or inability to work.”
- The employer then has the burden to justify its refusal by relying on “legitimate, nondiscriminatory” reasons for denying the requested accommodation beyond increased expense or decreased convenience. If the employer offers such a “legitimate, nondiscriminatory” reason, the plaintiff may show that the reason is pretextual (not valid or true).
- The case may be decided by a jury if there’s enough evidence the employer’s policies impose a significant burden on pregnant workers and the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify that burden possibly creating an inference of intentional discrimination.
- The plaintiff can create a genuine issue of material fact (necessary to avoid the case’s early dismissal and justify the case going to a jury) as to whether a significant burden exists by showing evidence the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant ones. This circumstantial evidence can rebut an employer’s apparently legitimate, nondiscriminatory reasons.
The court found that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation couldn’t reasonably be distinguished from hers.
Summing It Up
The U.S. Supreme Court stated that although pregnant employees are not entitled to special treatment from employers, they also cannot be discriminated against.
- Whether a denial of light-duty work is discriminatory depends on the facts of the situation.
- To be discriminatory, the employer’s practices or policies must put a significant burden on pregnant employees for reasons that don’t justify that burden.
- Plaintiffs can establish that burden by presenting circumstantial evidence that large numbers of similar, non-pregnant employees were on light duty while pregnant employees were not.
If you are pregnant and have been denied light-duty or modified work, contact our office. The facts of each case are unique, so you should talk to an attorney about your situation so you can have a better idea of your options, get some suggestions as to what your employer should do, and learn about both parties’ rights and responsibilities under the law.