Under federal law, Title VII, failing to accommodate a pregnant employee’s restrictions may be illegal, depending on the circumstances. A violation of the law would be especially clear if male or nonpregnant female employees with similar physical limitations are accommodated while pregnant employees are told they cannot get help.
This situation recently led to a sex and pregnancy discrimination case against First Call Ambulance Service, LLC, of Nashville, according to a federal Equal Employment Opportunity Commission (EEOC) press release.
Company Helped Others But Did Not Help Pregnant Employee
The complaint, which was filed in the U.S. District Court for the District of Tennessee, Nashville Division in September 2015, alleged the following facts:
- First Call provides medical transportation and ambulance services throughout Tennessee, Ohio, and Virginia.
- First Call hired Cressa Collier in 2009 as an EMT-IV.
- It promoted Collier to a paramedic position in 2011.
- On or about January 8, 2014, Collier told First Call’s human resource manager (Nina Mothershed) that she was pregnant. Collier also gave Mothershed a doctor’s note stating that Collier had a restriction that she could not lift patients “greater than 200 pounds without assistance.”
- About two weeks later, Collier met with Mothershed.
- Collier told Mothershed that she had been removed from her shifts.
- She also said that First Call allowed nonpregnant employees with lifting restrictions to use a power cot (a wheeled gurney with an electric lift) to lift patients.
- Mothershed told Collier that First Call could not accommodate her lifting restriction, so she would not be able to work because of her pregnancy. Collier would have to take an unpaid leave.
The EEOC claimed that First Call’s unlawful employment practices included having a policy of refusing to accommodate female employees with lifting restrictions due to pregnancy while providing accommodations to nonpregnant employees.
The parties recently settled the lawsuit. First Call must pay $55,000 to Collier. In addition, the company must take steps to prevent future pregnancy discrimination, including advising employees of their rights.
Physical Limitations and the Law
As pregnancy progresses or due to complications, a pregnant employee may temporarily not be as physically capable as she once was. This is less of a problem if the job does not present many physical demands. But for those whose work involves physical exertion, it may jeopardize their jobs (at least temporarily).
An employer may not want to accommodate a pregnant employee for multiple reasons. It might believe that pregnancy makes her unqualified to do the work or that not being pregnant is a bona fide occupational qualification (BFOQ) for the job.
The use of this defense is a very narrow exception to the prohibition of discrimination on the basis of sex and pregnancy. An employer using this defense would have to show two things:
- the pregnancy actually interferes with a female employee’s ability to perform the job, and
- the alleged interference must be based on objective, verifiable skills required by the job rather than vague, subjective standards.
This is rarely a successful defense. It cannot be based on fears of danger to the employee or her fetus, fears of being sued, or assumptions or stereotypes about pregnant women. In this case, First Call may have taken the action against Collier fearing that she could hurt herself and file a worker’s compensation claim. Or it might have thought that if Collier could not lift a patient properly and the patient fell off the gurney, it might be liable for harm to the patient.
Without showing a BFOQ, an employer may not require a pregnant worker to take leave until her child is born or for a predetermined time thereafter, provided that she is able to perform her job.
Under the Pregnancy Discrimination Act (which amended Title VII), there is a violation if a pregnant employee can show that nonpregnant employees with similar physical restrictions were accommodated, allowed to continue to work, and paid. This evidence of disparate treatment could show that the employer’s concern was not how the physical limitations endangered the employee or patients or otherwise made her incapable of doing the job. It makes it clear that the problem was her pregnancy.
An employer must treat a pregnant employee temporarily unable to perform all the functions of her job in the same way it treats other temporarily disabled employees, whether that is by modifying tasks, giving alternative assignments, or providing a disability leave or a leave without pay.
An employer cannot create special rules that apply only to pregnancy-related conditions in deciding whether a pregnant employee can work. An employer can use any procedure to determine the ability of all employees to work. It cannot use a double standard that requires pregnant employees to jump through different or more difficult hoops to keep working.
Under the federal Americans with Disabilities Act or similar state laws, if the complications of pregnancy are severe enough and last some period of time, employees can argue that they should be accommodated.
Summing It Up
If you are a pregnant employee with physical restrictions that may affect your ability to do your job, take the following steps.
- Talk to your supervisor or human resources manager and discuss what medical documentation your company needs to make changes.
- Talk to your health care provider in detail about what you do, what problems you are having, and what you think your employer needs to do to help you. Get the accommodations you need in writing from your physician.
- Provide the doctor’s letter or form to your employer.
- If your employer denies your request, ask why. Ask whether other changes might be acceptable.
- Ask whether others making similar requests have been treated similarly.
- Take notes of the conversation and keep copies of any relevant notes, memos, or e-mails.
- If your employer says it would accept alternate accommodations that would be less disruptive, and if you and your health care provider are willing, then give it a try.
- If your employer is simply saying no and you cannot do your job any longer, contact our office.
It is illegal to discriminate against pregnant employees because of their pregnancy. If this is happening to you, contact our office. We can talk about what is going on at work, what your employer is telling you, how other employees have been treated, how the law may apply, and what you can do to protect your legal rights and interests.
