Light duty and the Pregnancy Discrimination Act

pregnant business womanLight-duty policies are usually seen as a way to keep workers’ compensation costs down following a workplace injury. Some studies have shown that workers who go back to work sooner after an injury have a shorter recovery period than those who wait until they are completely healthy to return.

Sometimes, it may be appropriate to offer light-duty assignments to pregnant employees. However, there’s a right way and a wrong way to handle those accommodations.

THE LAW: Title VII of the Civil Rights Act protects women from discrimination in all aspects of employment. The Pregnancy Discrimination Act (PDA) holds that discriminating against an employee because she was, is or plans to be pregnant is gender discrimination.

The ADA allows employers to transfer employees with ­medical restrictions to open positions for which they are qualified, but does not require employers to create light-duty positions for disabled em­­ployees. Pregnant women covered by the FMLA may qualify for leave, but the law does not require employers to create light-duty positions.

WHAT’S NEW: A recent case sheds light on the liabilities of light-duty assignments for pregnant workers.

A company had a policy of only providing light-duty assignments to employees injured on the job. When a pregnant employee’s doctor placed her under a 50-pound lifting restriction, the company terminated her because her pregnancy was not an on-the-job injury.

Several supervisors commented on her pregnancy, expressing concerns that her “belly would get in the way” while working. Another supervisor stated that they “wouldn’t want her to lose her baby” and that “the company would be liable if we made her work against doctor’s advice.”

The employee demonstrated that she could perform all the job’s essential functions while pregnant before the doctor imposed the lifting restriction. Still, the employer terminated her, believing its neutral policy of only providing light-duty assignments for on-the-job injuries protected it from litigation.

The woman sued for gender discrimination under Title VII and pregnancy discrimination under the PDA. The employer moved to have the charges dismissed and the district court agreed. She appealed and the 6th Circuit Court of Appeals said the case should go to a jury.

It noted that the PDA requires employers to evaluate employees for light-duty positions based on their ability to perform essential functions, not on the cause of the disability. Because the employer allowed others with temporary disabilities to return to work as soon as they were able, it could not discriminate against similarly situated pregnant employees. That would violate the PDA.

The court also noted the supervisors’ comments indicating an animus against allowing pregnant workers to work. The court concluded that the two issues taken together created enough doubt about the employer’s motivation that a jury should make the final determination.

HOW TO COMPLY: First, understand that employers are not required to provide light-duty assignments. How­­ever, if they do, they must be implemented in a nondiscriminatory way.

Employers with light-duty programs should review the policy to ensure they are not discriminating against pregnant employees. Employers that do not have a light-duty policy should also look at their practices in handling pregnancy-related work restrictions.

The PDA requires employers to treat pregnant workers in the same way they would treat any other employee who has a temporary condition that affects their ability to perform the job’s essential functions.

Using this case as an example, workers returning from leave resulting from on-the-job injuries who had a 50-pound lifting restriction were allowed to work a light-duty assignment, but a woman who had the same weight restriction as a result of her pregnancy was fired.

Generally speaking, employers should allow pregnant workers to work as long as their medical condition permits them to. Should the pregnant employee have a working restriction, the employer should treat her in the same way it treats other employees with working restrictions.

Training supervisors

In this case, the policy itself may not have been discriminatory, but when coupled with supervisors’ remarks, the court decided only a jury could decide whether the employer discriminated against pregnant employees. The case illustrates why it is vital to train supervisors about pregnancy discrimination.

In particular, supervisors who make hiring and firing decisions should not betray a discriminatory animus by making disparaging remarks about pregnant workers. Most employers would not tolerate similar comments made about minorities or women in general, so why tolerate the behavior when it targets another protected group?

This is an issue of awareness. When supervisors understand that pregnant workers, disabled workers and those taking FMLA leave are protected group, they will learn not to make inappropriate remarks.

Employees with medical restrictions must be solely judged on their ability to perform the job’s essential functions.