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Beware policies forcing workers to take leave: That can be considered an adverse action

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in Human Resources,Maternity Leave Laws

Placing an employee on forced leave can form the basis for a lawsuit, according to a recent 7th Circuit Court of Appeals decision. That’s true even if the forced leave is consistent with company policy and applies to all employees.

Recent case: Svetlana, who is black, worked as a part-time stocker at Walmart three nights a week, a job that requires employees to be able to lift 50 pounds. When Svetlana became pregnant, her supervisor worked with her informally so she could stock aisles with light items, such as toothbrushes.

She had a miscarriage, but soon became pregnant again. This time, her doctor immediately restricted her to lifting no more than 10 pounds, which meant that she could not stock any aisle in the store. She demanded a transfer to a light-duty position such as folding clothes.

HR explained that employees unable to perform their jobs had to take a temporary leave of absence unless they were disabled and needed reasonable accommodations. This included pregnant employees and others with temporary restrictions. Essentially, Walmart had no appropriate light-duty positions and wasn’t going to create any.

Svetlana went home and never returned. Instead, she sued, alleging that she had been forced to quit in retaliation for demanding light-duty work and that Walmart was discriminating against pregnant, black employees by denying light duty.

In court, Walmart showed that black women regularly got the same casual accommodation Svetlana had received, but not light duty. It argued that Svetlana couldn’t sue because she hadn’t suffered an adverse employment action. That is, she hadn’t been fired, demoted or had her pay cut; she was merely placed on temporary leave until she could do her job again. The lower court agreed and dismissed the case.

But the 7th Circuit Court of Appeals wasn’t so quick to dismiss her argument. It concluded that being forced to take leave was most certainly adverse, even if the employee could return later. The court said an action is adverse if it does any of the following:

  • Affects an employee’s current wealth, by changing fringe benefits, compensation or the financial terms of employment
  • Harms an employee’s career prospects and thus the employee’s future wealth
  • Changes an employee’s working conditions, including subjecting her to humiliating, unsafe, degrading work or otherwise significantly and negatively altering her work environment.

Because an unpaid forced leave of absence affects current wealth, the court said it was adverse.

Fortunately for Walmart, Svetlana still lost the case. She couldn’t show that complaining about alleged pregnancy discrimination motivated Walmart to place her on unpaid leave. In fact, all similarly situated workers were forced into leave, whether they had filed a complaint or not. (Arizanovska v. Wal-Mart Stores, No. 11-3387, 7th Cir., 2012)

Final note: The Pregnancy Dis­­crimination Act (PDA) only protects pregnant women from different treat­­ment because they are pregnant. If all workers who can’t perform their jobs because of a temporary medical condition are treated the same way, there is no discrimination against those who happen to be pregnant and temporarily can’t perform their jobs. The PDA prohibits discrimination because of pregnancy and doesn’t provide special rights only to pregnant employees.

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