?The U.S. District Court for the Western District of Wisconsin recently decided that employers can exclude pregnant workers from light-duty work if they have a nondiscriminatory reason for doing so.
On Aug. 16, the court ruled in favor of Walmart’s previous policy of offering light-duty work to employees who were injured on the job, but not to pregnant employees.
Background
The federal Pregnancy Discrimination Act states that women affected by pregnancy, childbirth or related medical conditions must be treated the same as nonpregnant people who are similar in their ability or inability to work.
In its 2015 decision Young v. UPS, the U.S. Supreme Court ruled that pregnant employees can claim disparate treatment by showing that they belonged to a protected class, sought an accommodation and did not receive an accommodation while the employer accommodated others who were similar in their physical limitations. In that scenario, the employer must show it had a legitimate, nondiscriminatory reason for denying the accommodation. Otherwise, it’s a violation of federal law.
Before 2017, Walmart permitted light duty for workers injured on the job but did not offer light duty to pregnant workers or workers who were injured outside the job. The U.S. Equal Employment Opportunity Commission (EEOC) argued this constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act. Walmart contended that its light-duty policy served a legitimate purpose: to support the company’s workers’ compensation program in a way that saves money and reduces the company’s legal exposure.
The light-duty policy pertained to warehouse workers at a Walmart distribution center in Menomonie, Wis. For example, instead of loading boxes, a worker who was injured at the warehouse could be offered duties like rack labeling, paperwork, painting and cleaning, according to the lawsuit.
However, Walmart required pregnant workers with lifting restrictions or other limitations to go on leave. One employee said she was accommodated with a reduced schedule when she was not pregnant but was denied a similar accommodation when she was pregnant and under doctor’s orders to work no more than eight hours per day, according to the lawsuit.
In its opinion, the court stated, “The EEOC has not offered evidence of comparators who were similar to pregnant women in their ability or inability to work and who benefited from light duty, other than workers injured on the job.”
Separately, in 2020, Walmart signed a $14 million settlement to end a different national class-action lawsuit over denying light-duty work to pregnant workers. That lawsuit pertained to accommodation requests that Walmart denied in 2013 and 2014. It has overhauled the policy since then.
“We have crafted our employment policies to meet and often exceed legal requirements,” said Abby Williams-Bailey, senior manager of corporate communications for Walmart. “In October 2017, we revised our national accommodations policy to provide temporary alternative duty as a possible reasonable accommodation for pregnant associates. In addition, we extended reasonable accommodations, including temporary alternative duty, beyond just pregnancy to include associates with limitations due to pregnancy, childbirth, breastfeeding or related conditions.”
State Laws
In recent years, more states have passed laws prohibiting pregnancy discrimination.
“Thirty states have enacted pregnancy accommodation mandates in the last several years. Employers must comply with these laws where applicable,” said Edward Harold, an attorney with Fisher Phillips in New Orleans.
Another recent trend is more “employers making a decision to open up restricted-duty programs previously reserved for employees injured on the job to pregnant employees with restrictions,” he added. “Some of this came from the Supreme Court’s UPS decision, which caused significant uncertainty over whether this was legally required. But many companies have also been doing this from the perspective [that] it is good for their business, particularly helping with retention.”
ADA Considerations
Depending on the person’s physical limitations, pregnancy complications are sometimes considered a disability under the federal Americans with Disabilities Act (ADA), but not always. For example, a pregnant person might have a related condition, like back pain, that is a covered disability if it significantly limits a major life activity, such as lifting. If a pregnant worker does qualify as having a disability, then the employer must allow a reasonable accommodation.
“Generally speaking, employers should be assessing pregnancy reasonable accommodation requests on an individualized basis, using an interactive process, just as they do under the Americans with Disabilities Act,” said Elizabeth Gedmark, vice president at A Better Balance, a nonprofit advocacy organization based in New York City.
“Beyond an underlying base policy of reasonably accommodating pregnancy-related restrictions, everything else will be individualized,” Harold said. “Even if an employer has a light-duty program open to pregnant employees, not all pregnant employees will have restrictions severe enough for them to need to be in such a program.”
The EEOC published a fact sheet for employers to clarify how the ADA might apply and when a light-duty accommodation might be required.
However, “confusion still abounds with employers unclear about their legal obligations,” Gedmark said. “That trend continues.”