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On July 14, 2014, the EEOC issued Enforcement Guidance on the Pregnancy Discrimination Act (PDA). That law was passed in 1978 to make clear that discrimination based on pregnancy, childbirth or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.
The basic premise of the law is that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.
Several of the examples provided by the EEOC of possible discrimination concern light duty. In Example 9 of the Guidance, the Commission provides an example of pregnancy-related animus motivating an employer’s decision to deny a pregnant employee light duty.
An employee requests light duty because of her pregnancy. The employee’s supervisor is aware that the employee is pregnant and knows that there are light duty positions available that the pregnant employee could perform. Nevertheless, the supervisor denies the request, telling the employee that having a pregnant worker in the workplace is just too much of a liability for the company. It is not necessary in this instance that the pregnant worker produce evidence of a non-pregnant worker similar in his or her ability or inability to work who was given a light duty position.
The Commission goes on to state that even if there are no statements showing an animus, a pregnant worker can establish a violation of the PDA by showing that she was denied light duty or reasonable accommodations. In Example 10 the Commission states:
An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.
However, the Commission goes on to say that if the employer has certain restrictions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer can apply those restrictions across the board, including to pregnant workers.
The Commission also provides Example 12, demonstrating failure of an employer to apply restrictions equally.
An employer makes six light duty positions available to workers unable to perform one or more job duties due to an on the job injury, pregnancy, or an injury, illness, or condition that would constitute a disability under the ADA. A pregnant worker applies for a light duty assignment as a result of work restrictions imposed by her pregnancy. The employer denies the request, claiming that all six positions are currently filled. The employee produces evidence that, in the past, the employer has provided light duty assignments to workers injured on the job even when all six assignments were filled. The employee has provided evidence that the policy’s restrictions were not applied equally to the pregnant worker’s request for a light duty position.
The Guidance is helpful to employers in understanding and avoiding potential acts of discrimination in relation to pregnant employees. Employers who have a paternalistic approach to pregnant employees may easily stumble into violations of the PDA. The focus should be on the ability of the pregnant employee to perform the essential job functions, not on speculative assessments of what a pregnant employee may or may not be able to do. Stereotypes and assumptions that employers have about pregnant employees generally lead to ill-advised decisions. For further information on the Enforcement Guidance on Pregnancy Discrimination, please contact the undersigned.