Title VII of the Civil Rights Act of 1964 prohibits employers of 15 or more employees and engaged in interstate commerce from discriminating against employees on the basis of sex, in addition to other categories. Sex discrimination prohibited by Title VII includes pregnancy discrimination. This blog post addresses how the Equal Employment Opportunity Commission (“EEOC”) may have misapplied Title VII in the context of lifting restrictions at a nursing facility.
On March 7, 2018, the Equal Employment Opportunity Commission filed a complaint asserting sex discrimination against a North Carolina rehabilitation and nursing center on behalf of two nursing assistants. The Complaint arose from how the facility handled nursing assistants with job limitations due to pregnancy. The facility’s only job limitations policy provides for accommodations for employees with medically-imposed work restrictions from workplace injuries and illnesses. That policy does not apply to pregnancy-related, medically-imposed work restrictions because pregnancy is not a workplace injury. At the facility, one pregnant nursing assistant received physician-imposed lifting restrictions and was placed on unpaid leave. Still pregnant, she was terminated at the end of the leave period because the lifting restrictions remained in force. The second pregnant nursing assistant continued to work with physician-imposed lifting restrictions, and the facility terminated her because she could not obtain a withdrawal of the restrictions. The common thread was that both nurse assistants were terminated because of medically-imposed lifting restrictions due to pregnancy, not due to work injury or illness.
The EEOC’s Complaint invoked the Title VII sex discrimination prohibition, stating that work restrictions for non-pregnant employees were accommodated and such restrictions for pregnant employees were not accommodated. The Complaint noted that the facility provided light duty work, mechanical lifting devices and assistance from co-workers for non-pregnant employees with work restrictions related to work injuries or illnesses. Those accommodations were unavailable to employees with work restrictions due to pregnancy.
The seemingly perplexing aspect of this lawsuit is why it is considered a sex discrimination case. The accommodation policy for employees injured at work was applied equally to women and men who were injured at work. Thus, this is not a male-female comparison because women were covered by the accommodation policy as long as their medical condition was a work injury or illness.
The 1978 Pregnancy Discrimination Act added to the definition of “sex discrimination” medical conditions related to pregnancy. Pregnant employees must be treated the same for all employment-related purposes as nonpregnant employees. This includes treatment under policies related to medically-imposed job restrictions.
But for the North Carolina facility, its policy applies only to work injuries or illnesses, accommodations for which are available to pregnant women. If a pregnant person suffers a work injury or illness, the policy would apply to the medically-required restrictions related to the work injury or illness. With the policy being facially neutral and applying to both pregnant and non-pregnant employees, the exact discrimination is unclear.
So, the final question is whether the policy carves out pregnancy-related medical conditions for different treatment. It does not. There are a multitude of medical conditions that are not caused by workplace injuries or illnesses that will be excluded from accommodations under the North Carolina facility’s policy. Thus, pregnancy-related medical conditions are not being singled out for different treatment under the policy. Pregnant employees are being treated the same as employees who suffered temporary injuries from an automobile accident, which were also not job-incurred medical conditions.
A recent United States Supreme Court case involving a major delivery company grappled with a similar disability accommodation policy. 1 The Court identified as evidence of discrimination the multiple company policies that accommodated a variety of medical conditions, with the exception of pregnancy. Thus, the discrimination is not whether pregnant workers are treated the same as non-pregnant workers under the same disability accommodation policy. The discrimination is whether the overall policies of the employer carve out pregnancy from the medical conditions warranting an accommodation policy.
This is the classic not seeing the forest for the trees analysis. At first blush, there does not appear to be a case for pregnancy discrimination against the North Carolina facility. However, looking at the forest may yield a different conclusion.
1 Young v. United Parcel Service, Inc., 135 S.Ct. 1338 (2015).