In a blog post last month, I discussed the dilemma of the pregnant employee whose medical restrictions (i.e. not being allowed to lift something heavy) prevents her from doing something her employer considers the central function of her job. Is that employee out of a job? Can it be that her only choices are to jeopardize her health (and that of her unborn child) or else lose her job? Does the law provide any protection for her?
In the post, I discussed the circumstances under which the Pregnancy Discrimination Act of 1978 (PDA) requires the employer to offer the employee “light duty” – under which an employee is temporarily assigned duties that require less strenuous physical labor….and when the protections of the PDA fall short. One limitation I mentioned is the following:
Also, at least in the states of Georgia, Florida and Alabama, the PDA does not require employers to provide “light duty” to pregnant workers if the employer only provides such duties to workers injured on the job. Spivey v. Beverly Enters., 196 F.3d 1309 (11th Cir. 1999).
This last, court-imposed limitation is particularly frustrating, as it seems to fly in the face of the PDA's requirement that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k) (emphasis added). Let's say two employees are unable to lift more than 30 pounds: one, because she is pregnant, the other because she fell down on the job and was injured. If the employer allows the second worker to work light duty but not the first, it is not providing the same benefits to employees who are “similar in their ability or inability to work.” Instead, it is looking beyond “inability to work” to the source of that inability…and treating the pregnant worker less favorably.
So, for many women, the courts have interpreted the PDA's protections out of existence. Is there hope that this could change? The answer is a resounding “maybe”! There is potential hope on the horizon on three fronts.
First, the Supreme Court has decided to take up the issue. In the case of Peggy Young v. United Parcel Service, the Court will decide whether employer policies violate the PDA when they provide “light duty” to workers injured on the job but not to pregnant workers. Recently over 120 members of Congress asked the Court to decide in favor of the pregnant employee and overturn the various Circuit Court decisions that allow such discriminatory policies to exist. The current Supreme Court tends to favor employers, but there are exceptions. Where the Court will land on this issue is anybody's guess.
Second, Senator Bob Casey (D-Pa) introduced the Pregnant Workers Fairness Act (PWFA) last year. This law, if passed, would require employers to make reasonable accommodations for pregnant workers unless doing so would present an undue hardship to the employer. In terms of the issue addressed by this blog, the PWFA would bypass the whole issue of whether the PDA requires employers to provide light duty to pregnant workers when it provides such duty to workers injured on the job. Instead, it would simply make such accommodations mandatory unless the employer could prove hardship. However, this law has languished in the Senate for over a year, in part because it has no Republican co-sponsor.
Third, some states and cities have lost patience with Congress and enacted their own laws requiring employers to provide pregnant workers with reasonable accommodations. In the past couple years, such measures have passed – with unanimous or, at least, bipartisan support – in Delaware, Illinois, West Virginia, New York City, Philadelphia and Providence, R.I. Such laws already exist in California and Hawaii.
Of course, none of this helps pregnant workers who are being denied light duty in other states. But maybe – just maybe – hope is on the horizon.
If you believe you may have been discriminated against because of your pregnancy, please contact us at our website www.justiceatwork.com.