Excerpt memo of law for Pregnancy Discrimination under the PDA and Florida Statutes
This case involves a pregnancy discrimination claim. The basic facts as you described them to me are as follows: Plaintiff was employed as a Certified Nursing Assistant (CNA) in an ER. She became pregnant and was given a note by her doctor restricting her to limited lifting of not more than 25 pounds. She states that her job description when hired did not specify she had to be able to lift 25 pounds. The ER is a no-lift facility and there were 5 other employees who could help her with an obese patient. She requested light duty work (and was assigned a light duty job at first), but subsequently her employer would not give her light duty work. Her employer has given other employees light duty work due to workers’ compensation injuries on the job. Plaintiff was forced to surrender her job and take FMLA leave earlier than she wanted to take it.
On the above facts, you presented the following 2 questions for research: (1) does the failure to provide a pregnant employee, who has medical work restrictions, with light duty work violate the Pregnancy Discrimination Act (PDA) or any Florida statute? A related sub-issue is does the fact that light duty is provided to employees who have workers’ compensation injuries violate the PDA? (2) is there an implied duty of reasonable accommodation to a pregnant employee with lifting restrictions if the employer accommodates workers’ compensation employees by creating light duty positions for them?
The Pregnancy Discrimination Act applies to this case, as well as sections 760.01 (The Florida Civil Rights Act of 1992) and 760.10(1)(a), Florida Statutes (2003). All of the above prohibit discrimination on the basis of sex (which includes the status of pregnancy).
A summary of the state of the law under the PDA that covers this factual situation is clearly set forth in Am. Jur. 2d which provides that “women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes. Furthermore, women affected by such conditions are required by Title VII to be treated the same for all employment-related purposes as other persons who are not affected, but who have a similar ability or inability to work.” 45A Am. Jur. 2d, Job Discrimination §138 (2002). Additionally, “the PDA does not affirmatively instruct employers to treat pregnancy, childbirth, or related medical conditions in any particular way. Rather, it instructs employers to treat those things in a neutral way. Accordingly, while the PDA does not impose an affirmative duty on employers to offer maternity leave or to take other measures to assist pregnant employees, it does require that an employer treat a pregnant employee as well as it would have if she were not pregnant. Likewise, the PDA does not require that employers treat pregnant employees better than other temporarily disabled employees, although it does not prevent an employer from treating pregnant employees more beneficially than it treats other employees.” Id.
Moreover, “in determining whether an employer violated the PDA, it is not necessary to compare the plaintiff’s treatment with that of her male co-workers, as long as a comparison is made between pregnant and non-pregnant workers’. However, medically-based policies restricting employment opportunities do not violate the PDA when they are enforced uniformly against all employees under medical restriction and not enforced disproportionately against pregnant employees.” Id.
The PDA also provides that “women affected by pregnancy must be treated the same as other employees based on their ability or inability to work. An employer cannot discriminate against a pregnant employee simply because it believes the pregnancy might prevent the employee from doing her job. Elements of the prima facie case are:
(1) membership in a protected group;
(2) qualified for the modified-duty positions sought;
(3) denial of the modified-duty positions; and
(4) denial under circumstances that gave rise to an inference of unlawful discrimination.”
45B Am. Jur. 2d, Job Discrimination §801 (2002).
As far as the denial of light duty as a basis for discrimination, “if a plaintiff can show that a company denies modified-duty assignments to employees who sustain off-the-job injuries, but does not offer those opportunities to pregnant employees, the plaintiffs have made their prima facie case of pregnancy discrimination. All that needs to be shown is that the employer treated at least one non-pregnant employee who suffered off-the-job injury more favorably than pregnant employees. However, an employer does not violate the PDA by offering modified duty solely to employees injured on the job, and not to employees with non-occupational injuries, including pregnant employees.” Id. at §802.
Furthermore, “if the employer articulates a legitimate, non-discriminatory reason for its adverse employment action, an employee asserting a claim under the PDA must show that pregnancy was a determinative factor in the employment decision or that the employer’s explanation for its action was merely a pretext.” Id.
In trying to locate cases with similar factual situations, I found several informative federal cases and cases from other states, as well as one older Florida case, that illustrate and follow the above rules of law. The sole Florida case was O’Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991), but had a different factual background. There, the plaintiff worked as a correctional officer. Her doctor placed no restrictions on her continuing in her present job until her delivery date (as it did not involve heavy lifting). She informed her supervisor that she was pregnant but could continue working in her position. She was later terminated because of her employer’s concerned for the safety of a pregnant woman officer should a disturbance arise in the county jail.
The court found discrimination under the PDA as there was no medical or other evidence that a pregnant employee could not perform the tasks she had previously been doing, and that the concerns of her employer were not facially neutral as they applied only to pregnant women.
The following cases from federal courts and other states are much more on point and helpful to an analysis of your factual situation than the above Florida case. In Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir. 1998), the appellant challenged the district court’s holding that a company policy of granting light-duty assignments only to workers who suffer occupational injuries does not violate Title VII, as amended by the PDA. The U.S. Court of Appeals affirmed the judgment in favor of the employer and held that “because the PDA protects pregnant women only from being treated differently than similarly-situated non-pregnant employees, it does not guarantee light-duty assignments.” Id. at 205.
In that case, Ms. Urbano worked for Continental Airlines as a ticketing sales agent and assisted customers with sales and checking them in and with their baggage, often lifting loads over 20 pounds. When she became pregnant, the doctor ordered her to refrain from lifting anything above 20 pounds. She then asked her employer to move her to a service agent position that did not require lifting heavy loads. The request was denied because of Continental’s policy that granted light-duty assignments only to employees who suffered an occupational injury. Ms. Urbano was forced to use her accrued sick days, followed by a 90-day family leave and then unpaid medical leave. She filed a discrimination action against her employer.
In its holding, the court set forth the test for making a prima facie case of discrimination: (1) she was a member of a protected class; (2) she was qualified for the position she lost; (3) she suffered an adverse employment action; and (4) that others similarly situated were more favorably treated. Once this prima facie case is made, the employer can articulate a legitimate, nondiscriminatory reason for the employment action.
In this case the court found that Urbano failed to offer evidence that she was treated differently under the employer’s policy than other employees with non-occupational injuries, and that Continental treated her “in exactly the same manner as it would have treated any other worker who was injured off the job.” Id. at 206. The court found that under the PDA, an employer “is obliged to ignore a woman’s pregnancy and to treat the employee as well as it would have if she were not pregnant. Thus, Continental was entitled to deny Urbano light-duty assignment so long as it treats similarly affected but non-pregnant employees the same.” Id.
The court added that “because pregnant employees and employees who were injured on the job are no different in their ability or inability to do their work, the latter cannot receive more favorable treatment than the former.” Id. at 207. Also, “most courts have held that the PDA does not impose an affirmative obligation on employers to grant preferential treatment to pregnant women.” Id.
The court concluded that “Continental treated Urbano the same as it treats any other worker who suffered an injury off duty. There is no probative evidence that Continental’s distinction between occupational and off-the-job injuries was a pretext for discrimination against pregnant women or that it had a disparate impact on them. Urbano’s claim is thus not a request for relief from discrimination but rather a demand for preferential treatment; it is a demand not satisfied by the PDA. As long as pregnant employees are treated the same as other employees injured off duty, the PDA does not entitle pregnant employees with non-work related infirmities to be treated the same under Continental’s light-duty policy as employees with occupational injuries.” Id. at 208.
Another important case with a similar factual setting to your case is Spivey v. Beverly Enterprises, Inc., 196 F.3d 1209 (11th Cir. 1999). There, the pregnant employee was a CNA and her primary responsibilities included lifting and repositioning of patients. After learning she was pregnant, she was restricted by her doctor from lifting more than 25 pounds. Her employer notified her that she would not be provided with an accommodation due to the company’s modified duty policy. This policy stated that employees were excused from meeting their job responsibilities only if they qualified for modified duty which was available exclusively to employees who suffered from work-related injuries. Thus, under this policy, appellant could be excused from lifting patients only if she were injured on the job. As a result of her medical restriction, she was terminated, and brought a discrimination claim under the PDA.
The court set forth the 4 elements for establishing a prima facie case of discrimination: (1) she is a member of a protected group; (2) she was qualified for the position or benefit sought; (3) she suffered an adverse effect on her employment; and (4) she suffered from a differential application of work or disciplinary rules. The court found that there was no dispute she was no longer qualified to work as a CNA since her lifting restriction prevented her from performing the responsibilities of her position. Appellant’s argument that she should have been given the accommodation of modified duty because she was as capable of performing a modified duty assignment as were non-pregnant employees who were injured on the job, was rejected by the court. The court found that “the PDA does not require that employers give preferential treatment to pregnant employees” and that the employer was under no obligation to extend this accommodation to pregnant employees. Id. at 1312.
The court also found that she failed to establish she had suffered from a differential application of work rules, since the benefit she was seeking of modified duty was offered only to a clearly identified sub-group of workers injured on the job. Instead, the court found that the correct comparison “is between Appellant and other employees who suffer non-occupational disabilities, not between Appellant and employees who are injured on the job.” Id. at 1313. The court held that the employer was entitled to deny her a modified duty assignment as long as it denied modified duty assignments to all employees who were not injured on the job. The court concluded that “an employer does not violate the PDA when it offers modified duty solely to employees who are injured on the job and not to employees who suffer from non-occupational injury. Of course, pregnant employees must be treated the same as every other employee with a non-occupational injury.” Id.
E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000), also concerned several CNAs alleging discrimination for being terminated due to pregnancy weight-lifting restrictions and being denied light duty work. The company there also had a policy of allowing modified duty only for those employees injured on the job. The court held that the plaintiff bears the initial burden of establishing a prima facie case of discrimination (using the 4 elements already described in the earlier cases) by a preponderance of the evidence. The burden then shifts to the defendant who must provide a legitimate, nondiscriminatory reason for the adverse employment action suffered by the plaintiff. If the defendant provides a facially nondiscriminatory reason, the burden shifts back to the plaintiff to show either that her pregnancy was a determinative factor in the defendant’s employment action or to show that the defendant’s explanation for its action was merely a pretext. Id. at 1191. Although the burden shifts back and forth, the ultimate burden of proving intentional discrimination is borne by the plaintiff. Id. at 1192. [ See also Hanke v. Horsescents Entertainment, Inc., No. CIV-02-0306-PHX-ROS (U.S. Dist. Ct., D. Ariz. 2003) (also explaining the above procedure shifting the burden between the parties) ].
In E.E.O.C., the court found that because the plaintiffs showed that at least one non-pregnant employee, who was temporarily disabled from injuries sustained off the job, was more favorably treated than the pregnant plaintiffs, the prima facie case of discrimination had been made. Id. at 1197.
In the Michigan case of Cunningham v. Dearborn Bd. of Education, 633 N.W. 2d 481 (Mich. Ct. App. 2001), the court found no discrimination under the Michigan Civil Rights Act for a pregnant custodian who was terminated because she was restricted from lifting heavy weights, climbing a ladder and using an industrial floor buffer. She alleged she was treated differently because her employer favored employees with job-related disabilities. The court held that plaintiff’s temporary pregnancy disability was not similarly situated with defendant’s other employees who sustained work-related disabilities and were eligible for worker’s compensation benefits.
Another similar case is Daugherty v. Genesis Health Ventures of Salisbury, Inc., Civ. No. AMD 03-2103 (U.S. Dist. Ct., D. Maryland 2004). There, a CNA was terminated because the employer would not accommodate her lifting and other restrictions arising from her pregnancy. Plaintiff’s claim was that the employer’s failure to provide light duty assignments to pregnant workers such as herself violated the PDA. The employer claimed it had a longstanding policy of withholding light duty assignments for ALL employees with work restrictions other than those employees who were injured on the job. The court found that there was no disparate treatment since the employer treated all similarly situated employees the same way and that the policy was rooted in the realities of the nursing home industry (i.e., that it was a business necessity that nursing assistants providing patient care be able to lift residents). The court concluded that plaintiff had failed to show that the policy was ever applied in a discriminatory manner. The court held that “the clear weight of precedent is that an employer is not required to treat disability arising from pregnancy more favorably than it treats other forms of temporary disability. Rather, the rule seems to be that disability arising from pregnancy cannot be singled out for less favorable treatment. In this case, it is undisputed by plaintiff that defendant treats all disabilities among the nursing staff that arise other than on-the-job equally: such employees are not eligible for light duty. Accordingly, defendant is entitled to a judgment as a matter of law.” Id. at 6.
The above cases demonstrate that the employer has no additional duty to accommodate a pregnant employee, other than treating her equally to similarly-situated employees injured off the job. This accommodation issue was more clearly explained in Salazar v. Ashcroft, No. CIV 02-878 BB.RLP (U.S. Dist. Ct., D. New Mex. 2003). There, the plaintiff claimed that she was forced to carry heavy loads of mail while she was pregnant and that her employer did not sufficiently accommodate her physical limitations arising out of pregnancy.
The court stated that “the PDA, however, is not a pregnancy accommodation statute, and does not require employers to provide light duty to pregnant employees. Instead the PDA protects against differential treatment of pregnant employees, and requires that such employees be treated exactly the same as non-pregnant employees. Since Plaintiff never claimed that she was treated differently than any non-pregnant employee, she failed to exhaust a PDA claim cognizable under Title VII.” The court concluded that “the PDA does not require an employer to accommodate an employee’s pregnancy, and does not require an employer to make special efforts on behalf of pregnant employees.”
As far as asking other employees to help out a pregnant employee with her weight-lifting restrictions, Sermons v. Fleetwood Homes of Ga., 227 F. Supp. 2d 1368 (S.D. Ga. 2002), held that plaintiff failed to offer sufficient evidence that Defendant’s failure to reassign her or to reassign other employees to help her is evidence of pregnancy discrimination. The court found that “even assuming Defendant had some flexibility and asked employees to help each other on occasion, Plaintiff has introduced no evidence that Defendant reassigned employees for extended periods of time” and “Plaintiff has not explained why Defendant’s failure to do so in this case shows it was discriminating because Plaintiff was pregnant.”
Based on all of the above, it appears the failure of Ms. Plaintiff’ employer to provide her with light duty would most likely not be found to be discriminatory under the PDA and similar Florida law. The fact that other employees injured on the job and receiving workers’ compensation benefits had light duty jobs does not affect the non-discriminatory aspect here. In order to establish discrimination, it appears that she must establish that lifting is not a required element of her position at all or that employees similarly situated to her (i.e., injured off the job) were being treated preferentially and differently from her. Additionally, as stated in the cases above, there is no duty of accommodation, implied or otherwise, required under the PDA for pregnant employees to provide them with light duty jobs.
November 2, 2012
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