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Employers Can Deny 'Light Duty' to Pregnant Women

Amanda Reeves learned she was pregnant in November 2002, three months after starting work as a truck driver for Swift Transportation Co. Inc. While she had never unloaded her truck or carried heavy loads, the job required her to be able to push or pull freight weighing up to 200 pounds and carry 75 pounds up to 56 feet. Her obstetrician told her she could continue to work if she performed only "light work," lifting no more than 20 pounds. When she presented the doctor's letter, her supervisor sent her home, saying there was no light work available. She called in daily, asking for light work, but after a few weeks, Swift terminated her.

In doing so, the company followed its policy of offering light duty only to those employees who are injured on the job, and terminating those who were unable to perform their normal duties due to non-work-related injuries or illnesses--including pregnancy.

The apparent consistency with which the company implemented the policy served them well. When Reeves filed suit claiming the company had violated the Pregnancy Discrimination Act of 1978 (PDA), the District Court for the Western District of Tennessee disagreed and granted summary judgment to Swift Transportation. In May, the 6th Circuit Court of Appeals upheld the lower court's ruling.

While a federal jury in Suffolk County, New York, recently reached the opposite conclusion in a similar case involving pregnant police officers whose requests for light duty were denied the 6th Circuit decision follows precedents.

"This case was a slam-dunk winner," says Brenda Feis, partner in Seyfarth Shaw's Chicago office. "It is well established that the PDA does not create preferential rights for pregnant employees."

Equal Treatment

The PDA established pregnancy discrimination as a form of sex discrimination, prohibiting employers from singling out pregnant women for adverse treatment and from adopting policies with an adverse impact on them as a class. It states that pregnant employees "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." The PDA does not require employers to make special workplace accommodations for pregnant employees, and pregnancy is not a condition that qualifies for special treatment under the ADA.

"It is up to employers to decide how liberal they want to be on light duty," Feis says. "If they do have a light duty policy, it should apply across the board to pregnant and similarly situated non-pregnant employees."

Two other circuits have affirmed the employer's prerogative when it comes to providing alternative work arrangements for a pregnant woman. In 1998 in Urbano v. Continental Airlines, the 5th Circuit found for the airline, stating that the plaintiff who was denied light duty was treated the same as any other worker with an off-duty injury.

The 11th Circuit reached a similar conclusion in the 1999 case Spivey v. Beverly Enters.The 6th Circuit noted that no Swift employees had been given a light work assignment who had not been injured on the job. Because Swift did not make exceptions for non-pregnant employees, the policy was not a pretext for pregnancy discrimination, the court found.

"To hold otherwise would result in the Court affording pregnant women more benefits and better treatment than other employees, instead of equal benefits and the same treatment as intended by the [Pregnancy Discrimination] Act," the district court said.

Drawing The Line

While that makes the employer's rights clear, some want to keep valued employees on the job after they become pregnant. Doing so without raising accusations of unfair treatment from other temporarily disabled employees can be tricky.

"It's very difficult to make rules that are fair to all employees with medical conditions--and right now pregnancy is considered a medical condition," says Julie Harris, partner in Calfee, Halter & Griswold in Cleveland. "Whether as a policy matter that makes sense is a decent debate to have."

Harris argues that while the law views pregnancy as a medical condition like any other, as a practical matter, it has some differences--it is always temporary, almost always results in a full recovery and has a public benefit. That suggests new approaches are needed, she argues.

"There are employers who would like to go to the end of the earth for a pregnant woman because she is a great employee," she says. "They want a policy that lets you do that without the bright line rules that courts draw."

Joanna Grossman, professor of law at Hofstra University, says assuring the real needs of pregnant women and without unnecessarily limiting their opportunities is a difficult balancing act. The impetus for the PDA was the stereotype that women could not be productive workers while pregnant, and Grossman worries that the recent uptick in pregnancy discrimination lawsuits will resurrect those misconceptions.

"My concern is that we may be pulled back to a 1970s scenario where employers considered pregnant women to be incapacitated," Grossman says.

Grossman favors an ADA-type approach, requiring accommodation for a pregnant woman's needs in certain types of situations.

But in the absence of new legislation, employment attorneys suggest the safest approach is to treat everyone with a non-work related condition the same.

"Be careful if you are giving someone a benefit that others don't have," says Michael Schmidt, member of Cozen O'Connor in New York. "Treating employees differently may result in you running afoul of the law."

Senior Editor

Mary Swanton

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