Due to a lack of any substantial impairment limiting a major life activity as well as refusal to accommodate pregnancy-related complications resulting in termination, the Federal Appellate Court found it was not discrimination under Title VII/PDA to terminate due to lack of evidence employer treated similarly situated non-pregnant co-workers more favorably.
In Serednyj v. Beverly Healthcare, LLC (2011 WL 3800123 C.A.7 issued Aug. 26, 2011), the employee worked as an Activity Director for a nursing home. The execution of duties entailed some physically strenuous functions including rearranging dining room tables for specific activities as well as transporting residents to activities in heavy wheelchairs and co-workers often assisted Employee in performing job duties. Employee began to have pregnancy complications and a doctor implemented work restrictions limiting activities to no heavy lifting or strenuous activities directly in conflict with job duties.
The employer considered reasonable accommodation but refused same based on policy allowing restriction only when medically necessary for qualified individuals with disabilities to perform essential functions and permitting no other restricted or limited duty for non-work related injuries or conditions. The employer felt the employee did not qualify for FMLA leave based on insufficient length of employment. Employer paid all available sick and vacation leave pursuant to policies and informed employee to return to work or risk termination. The employee remained absent from work and the employer terminated employment.
The employee then requested accommodation from majority of job duties or at the very least assistance by co-workers in performing duties similar to pre-pregnancy employment. Despite terminated status, the employer again considered reasonable accommodation but again refused same based on work policy.
Under both Title VII and the PDA, the issue of pregnancy-related complications was a case of first impression in the Seventh Circuit; however pregnancy itself has long been protected under federal law. Title VII prohibits employment discrimination on the basis of sex and the Pregnancy Discrimination Act (PDA) explicitly extends Title VII protection to pregnant women as pregnancy is a proxy for gender, and, therefore, discrimination against pregnancy is discrimination against women.
The PDA requires an employer ignore pregnancy and fairly treat pregnant employee the same as if no pregnancy existed. Therefore, an employer is not required to provide an accommodation to a pregnant employee unless it provides the same accommodation to its similarly situated non-pregnant employees. In the case at bar, the employee first unsuccessfully argued her employer treated employees with a qualified disability or work related injury more favorably by providing accommodation to disabled and work-related injured employees but refusing accommodation to all other employees requesting accommodation.
However, the Seventh Circuit reasoned the policy complied with the PDA because it did, in fact, treat non-pregnant employees the same as pregnant employees – both are denied an accommodation of light duty work for non-work-related injuries. The PDA merely required accommodation policies, in this case, be “pregnancy-blind,” in order to be valid.
Second, the employee unsuccessfully argued she suffered unfavorable treatment post-pregnancy as compared to pre-pregnancy because other employees assisted the employee in performing job duties before pregnancy but after pregnancy, the employer denied request for the same assistance or accommodation. The Seventh Circuit reasoned for purposes of Title VII/PDA, a request for an accommodation was materially different than a request for assistance. Co-workers assisting Employee before pregnancy did so completely voluntarily in a spirit of teamwork but any co-worker was free to decline request and under no obligation to provide assistance. However, if Employer granted request for assistance, only then would duties be formally modified to light duty work, and the assistance given by co-workers now obligatory.
ADA and Retaliation
The Americans with Disabilities Act (ADA) prohibits discriminating against a qualified individual with a disability of a physical or mental impairment substantially limiting one or more of the major life activities of such individual. A medical condition by itself does not constitute a disability. Pregnancy cannot be called impairment and although pregnancy per se is not covered by the ADA, the Act does not necessarily exclude all pregnancy-related conditions and complications.
Yet, even if pregnancy was a physical/mental impairment this arguable “impairment” must still substantially limit an individual. Factors considered include the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
The Seventh Circuit reasoned short-term, temporary restrictions, with little or no long-term impact, are not substantially limiting and do not render a person disabled for purposes of the ADA. Pregnancy is, by its very nature, of limited duration, and any complications arising from a pregnancy generally dissipate upon birth. However, dictum in the opinion appears to indicate if pregnancy-related complications were not of limited duration but rather long-term limitations then an employee would be disabled with an impairment substantially limiting a major life activity, namely reproduction. The Seventh Circuit remained silent on examples of when pregnancy-related complication rose to the level of a disability but it appears any chronic, long-term, or permanent impact such as infertility or psychological conditions resulting from the emotional distress of a miscarriage may in fact be considered, or at least argued in the future, a disability within the ADA.
Finally, the Seventh Circuit held the employer did not retaliatorily discharge the employee reasoning the employee suffered no adverse employment action after her request for reasonable accommodation. The employee was no longer employed at the time of the request for accommodated. Therefore, there was no evidence of retaliation because there was no action yet for the employer to retaliate against. Further, the employer attempted to delay termination as long as possible by paying all available sick and vacation leave pursuant to policies.
First and foremost, the abovementioned precedent does not allow for blanket protection when terminating pregnant employees. Employers with similar policies allowing accommodation only to qualified individuals, namely the disabled and injured workers, should ensure such policies comply with federal law. As previously reported in this KC&A Update, the ADA is very clear U.S. employers are required to engage in the interactive process and conduct an individualized assessment to determine supplying a reasonable accommodation to employees upon request. Please be advised “blind” adherence to attendance requirements and auto-termination presents the risk of seven figure exposure.
In order for employers to prevent and protect against claims by pregnant employees, we recommend following the same techniques used in considering accommodation for disabled or work related injured employees as well as:
1. Maintaining “pregnancy-blind” accommodation polices;
2. Declining to order co-workers to assist pregnant employees;
3. Delaying termination by paying all available sick and vacation leave;
4. Refusing to overlook absences of non-pregnant employees upon the decision to auto-terminate for failing to return to work;
5. Denying requests to accommodate other non-pregnant employees not qualifying for accommodation according to work policy;
6. Avoiding the appearance of more favorable treatment amongst employees;
7. Carefully considering reasonable accommodation potential under ADA and ability to perform the essential job functions of the position despite the fact employee does not qualify for accommodation according to policy;
8. Requesting confirmation of restriction prior to termination;
9. Determining whether pregnancy complication may result in chronic, long-term, or permanent impairment by keeping in contact with treating doctor as well as requesting suggestions whether any open positions fit the restrictions, allowing the employee to return to work;
10. As always, documenting all steps thoroughly and referring with defense counsel when necessary.