Pregnancy Discrimination: Abstract New EEOC Guidelines vs. Real World

At the end of last month, the EEOC updated the pregnancy discrimination guidelines it issued last summer in the wake of March’s Supreme Court’s decision in Young v. UPS.   Ignoring the Court’s significant criticisms of last year’s guidelines, the EEOC notes in its press release that it made only a few changes to reflect the Court’s new pregnancy discrimination standard.  It has completely replaced the former guidelines on its website with the new guidelines, so it’s virtually impossible to evaluate the breadth and significance of the changes.   Coincidentally, about a week later, the Sixth Circuit dismissed the FMLA and pregnancy discrimination claims of an employee who was fired during her pregnancy because she could not perform the essential functions of her job and refused to return FMLA forms.   Huffman v. Speedway LLC, No. 14-1668 (6^th Cir. 7-1-15).

Last summer’s EEOC’s pregnancy discrimination guidelines provided that employers should provide light duty and time off to pregnant employees under the same conditions as other non-pregnant employees.   In particular, the EEOC’s standard was that pregnant employees “be treated the same for all employment-related purposes as other persons no so affected by similar in their ability or inability to work.”  As examples, the EEOC posited that pregnant employees must be provided with light duty if light duty is provided to employees with work related injuries and must provide the same reasonable accommodation provided to an employee with a disability if it also would not create an undue hardship. 

In March, however, the Supreme Court strongly criticized the EEOC’s new positions on pregnancy discrimination and refused to give them any significant weight in its decisionmaking. Both before and immediately after the passage of the PDA, the EEOC guidelines required only that pregnancy be treated the same as other medical conditions:

“Disabilities caused or contributed to by preg­nancy . . . for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions.”

  In rejecting the recent EEOC guidance, the Court cited concerns with the EEOC’s

timing, “consistency,” and “thor­oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status?   Why has it now taken a position contrary to the litigation position the Government previously took?   Without further explanation, we cannot rely significantly on the EEOC’s determination.

 

The new guidelines strike significant portions of its prior discussions and examples about finding pregnancy discrimination when a pregnant employee is treated differently than another employee with similar abilities to work (particularly with respect to light duty requests) and, instead, attempt to explain the Supreme Court’s similarly new position on pregnancy discrimination.   “Employer policies that do not facially discriminate on the basis of pregnancy may nonetheless violate the provision of the PDA where they impose significant burdens on pregnant employees that cannot be supported by a sufficiently strong justification.” 

A plaintiff need not resort to the burden shifting analysis set out in McDonnell Douglas Corp. v. Green in order to establish an intentional violation of the PDA where there is direct evidence that pregnancy-related animus motivated the denial of light duty. Absent such evidence, however, a plaintiff must produce evidence that a similarly situated worker was treated differently or more favorably than the pregnant worker to establish a prima facie case of discrimination.

According to the Supreme Court's decision in Young v. United Parcel Serv., Inc., a PDA plaintiff may make out a prima facie case of discrimination by showing "that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.'" As the Court noted, "[t]he burden of making this showing is not 'onerous.'" For purposes of the prima facie case, the plaintiff does not need to point to an employee that is "similar in all but the protected ways." For example, the plaintiff could satisfy her prima facie burden by identifying an employee who was similar in his or her ability or inability to work due to an impairment (e.g., an employee with a lifting restriction) and who was provided an accommodation that the pregnant employee sought.

Once the employee has established a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for treating the pregnant worker differently than a non-pregnant worker similar in his or her ability or inability to work. "That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates."

Even if an employer can assert a legitimate non-discriminatory reason for the different treatment, the pregnant worker may still show that the reason is pretextual. Young explains that

[t]he plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather-when considered along with the burden imposed-give rise to an inference of intentional discrimination.

An employer's policy of accommodating a large percentage of nonpregnant employees with limitations while denying accommodations to a large percentage of pregnant employees may result in a significant burden on pregnant employees. For example, in Young the Court noted that a policy of accommodating most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations would present a genuine issue of material fact.

That being said, the Sixth Circuit soon thereafter affirmed the summary judgment dismissal of pregnancy discrimination and FMLA claims brought by a pregnant plaintiff who was fired during her pregnancy when she could not perform all of the essential functions of her position and refused to return the FMLA forms (after having already provided other letters from her physician explaining her work restrictions).  Huffman v. Speedway LLC, No. 14-1668 (6^th Cir. 7-1-15).

According to the Court’s opinion, the plaintiff worked as a shift leader and sometimes worked in the store alone.  About four months into her pregnancy, she presented a doctor’s note explaining that she could not work more than 8 hours and needed a 15 minute break every four hours.  Her request was granted.  After experiencing some hip pain a month later, her doctor sent a note that she should not engage in activities which could cause her to fall or drop something on herself. When the employer asked the plaintiff which job duties were concerning to her, she identified: taking out the trash, standing for long periods of time, squatting, bending, leaning over, climbing ladders and lifting heavy objects.   Seeking more expert opinion on the plaintiff’s abilities, the employer requested her physician to evaluate her abilities to perform her job duties.  The physician indicated that she should perform light medium work, not lift over 20 pounds, not climb, and not frequently lift over 10 pounds, but that she could bend, squat, kneel, stand and walk for short periods.  He also advised her to avoid certain job duties for the remainder of her pregnancy, including cleaning the coolers, making tea, emptying trash, stocking outside, cleaning baseboards, walls, windows and restrooms, etc.  The plaintiff admitted that this mean that certain job duties would not be performed whenever she worked alone.

The employer indicated that it could not accommodate these medical restrictions, that the plaintiff could not return to work until the restrictions were lifted and that she should take FMLA leave or, if ineligible, personal leave.  Despite her having already provided a detailed medical opinion, the employer then sent her an FMLA forms to complete, which the plaintiff refused to do since she wanted to remain at work.  The employer explained that it might provide her with personal leave after she exhausted FMLA leave, but it would not guarantee returning her to her shift leader position after the FMLA period lapsed.  She was also informed that if she refused to complete the FMLA paperwork, she would be fired for job abandonment.  While the plaintiff took vacation days, her FMLA deadline passed and the employer denied her FMLA leave.  However, it offered her personal leave if she returned the paperwork within two weeks.  Again, the plaintiff refused.  Accordingly, her employment was terminated several weeks later and the litigation ensued.

The Court dismissed her involuntary/interference FMLA leave claim on the basis it was not ripe.  In the Sixth Circuit, a plaintiff cannot sue for being involuntarily placed on FMLA leave (when the plaintiff wants to remain at work) until after the plaintiff seeks FMLA leave and is denied on the grounds that it had been exhausted because of the involuntary FMLA leave.

While being forced to take unpaid leave has an effect similar to being suspended without pay, the statute does not grant employees the right to be free from suspension. Several of our sister circuits have therefore held that involuntary FMLA leave does not directly injure an employee’s FMLA rights. . . .

We nonetheless recognize that involuntary FMLA leave has the potential to indirectly interfere with an employee’s FMLA rights. An employer who forces an employee who does not have a job-restricting serious health condition—i.e., an employee who remains capable of performing all essential job duties—to take FMLA leave may improperly exhaust the twelve weeks of leave to which the employee is statutorily entitled each year. . . . But the injury to the employee’s FMLA rights would remain inchoate unless she develops a serious health condition within a year and requests FMLA leave. If the employer were to grant the employee the full twelve weeks of leave to which she is entitled—i.e., not counting the previous involuntary FMLA leave against her annual limit—the employee would not suffer a cognizable injury under the FMLA. Therefore, an involuntary-leave interference claim “ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.”

The Court refused to recognize her opposition to involuntary leave as an FMLA retaliation claim either:

Because involuntary leave cannot by itself violate the FMLA, opposing involuntary leave is not protected conduct under the statute. Therefore, termination for refusing involuntary leave is not retaliation.

The Court rejected the plaintiff’s argument that the employer’s citation to her pregnancy as a reason to place her on involuntary medical leave constituted direct evidence of discrimination.   In light of her own physician’s instructions, this was not a stereotyping case.  Bizarrely, the plaintiff attacks the employer’s policy (which mostly quotes the FMLA regulations) that medical conditions related to pregnancy may constitute a serious health condition under the FMLA.  The Court correctly found the policy does not distinguish between providing leave for pregnancy and other serious health conditions.  In any event, the Court decided that the employer was too straightforward to be trying to hide discrimination:

Even if Speedway had misidentified the reason for Huffman’s FMLA leave, the paperwork would not be direct evidence because we are not required to conclude that Speedway acted with discriminatory motive. The existence of an ulterior motive that Speedway was trying to cover up with an “invented reason” must be inferred. A second inference is required to conclude that the ulterior motive was pregnancy discrimination.

 

Ultimately, the plaintiff’s discrimination claim failed because she failed to submit any admissible evidence that non-pregnant employees were treated more favorably.  All she had was her own hearsay testimony based on what she heard from co-workers who believed that other employees had been placed on light duty when faced with similar medical restrictions.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: Ohio Law Does Not Require Mandatory Maternity Leave

This morning, the Ohio Supreme Court (in a 5-1 decision) held in a highly anticipated decision that the Ohio Revised Code does not require mandatory maternity leave. In particular, the Court held that an employment policy which imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave cannot constitute direct evidence of sex discrimination under R.C. Chapter 4112. Thus, the fact that an employer relied upon a uniformly applied policy denying any leave of absence to any employee with less than one year of seniority could not constitute direct evidence of sex discrimination under Ohio law when that policy was used to deny maternity leave to an employee who gave birth eight months after being hired. McFee v. Nursing Care Mgt. of Am., Inc., Slip Opinion No. 2010-Ohio-2744. If the Court had held otherwise, the possibility existed that employers would refuse to hire pregnant or other women in order to avoid providing them with maternity leave.

According to the Court's opinion, a woman applied for employment in a nursing home in Pataskala and received an employee handbook upon being hired. The Handbook provided that employees would not be eligible for a leave of absence for any purpose until they had worked for at least one year. Eight months later, the woman's doctor provided a note saying that she was physically unable to work until after giving birth. Shortly thereafter, she gave birth and she was fired three days later for taking a leave of absence before she was eligible under the employer's policy. She filed a Charge of Discrimination with the Ohio Civil Rights Commission, where an investigator found probable cause of discrimination. An Administrative Law Judge disagreed and recommended dismissal of the complaint, but the OCRC disagreed and imposed liability. The employer appealed to the Licking County Common Pleas Court, which reversed the OCRC, which appealed. The Court of Appeals reversed again, finding that Ohio law required employers to provide all woman with a reasonable amount of maternity leave and that the employer's policy constituted direct evidence of discrimination (which relieved the woman of having to produce other evidence of sex or pregnancy discrimination). The employer again appealed and the Supreme Court reversed.

Ohio Revised Code § 4112.02(A) precludes employment discrimination on account of sex. Revised Code § 4112.01(B) provides in relevant part that:

the terms "because of sex" and "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. 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, and nothing in division (B) of section 4111.17 of the Revised Code shall be interpreted to permit otherwise. This division shall not be construed to require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term or except where medical complications have arisen from the abortion, provided that nothing in this division precludes an employer from providing abortion benefits or otherwise affects bargaining agreements in regard to abortion.

First, the Court summarily rejected the appellate court's contention that the employer's policy could constitute "direct" evidence. Therefore, the employer was entitled to the McDonnell-Douglas burden shifting requirement of proving discriminatory intent and the opportunity to articulate a legitimate and non-discriminatory basis for its action.

Second, the Court found that it was not always illegal to discharge a pregnant employee. The statute simply required that pregnant employees not be fired without just cause or treated differently than other employees. "Thus, the statute does not provide greater protections for pregnant employees than nonpregnant employees." The Ohio statute mirrors the federal statute, which has generally been applied to not require preferential treatment for pregnant employees. In this case, the employer's policy was pregnancy-blind: it applied equally to all employees. "Thus, a pregnant employee may be terminated for unauthorized absence just as any other employee who has not yet met the minimum-length-of-service requirement but takes leave based upon a similar inability to work. Unless there is other evidence of discrimination or pretext, R.C. Chapter 4112 does not prohibit termination of an employee affected by pregnancy under these circumstances."

The Court rejected the OCRC's argument that the prohibition on discrimination "because of pregnancy" was separate from the "treated the same" requirement and required employers to provide maternity leave so that pregnant employees could not jobs to the same extent as non-pregnant employees because the United States Supreme Court had already earlier rejected that argument when interpreting the federal statute.

It would be contrary to this interpretation of the federal statute to hold that the first and second sentences of the state statute, which mirrors the federal statute, serve different purposes. Although the scope of the second sentence is narrower than that of the first sentence, both serve the same goal—to ensure that employees who are pregnant are not discriminated against on the basis of pregnancy. To hold otherwise would be to require that employers treat pregnant employees more favorably than other employees. The statutes do not support such a result.

The Court also refused to characterize the woman's termination as "because of pregnancy" when it was really "because of an unauthorized leave of absence." Only if she satisfied the McDonnell-Douglas burden of proof (or introduced other direct evidence of discrimination) would she be able to show that her termination was "because of pregnancy."

Finally, the Court chose to interpret the OCRC's Administrative Rule 4112-5-05(G) as consistent with the Court's interpretation of the Ohio Revised Code.

Ohio Adm. Code 4112-5-05(G)(2), the administrative regulation at issue, provides: "Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination."

Still later, however, OAC 4112-5-05(G)(5) provides:

Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer's leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. For example, if the female meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing. Conditions applicable to her leave (other than its length) and to her return to employment shall be in accordance with the employer's leave policy." (emphasis added)

In light of these two apparently conflicting rules by the OCRC, the Court found the first rule to be ambiguous. If the Rule requires mandatory maternity leave even when similar leaves were not offered to other employees, then the Rule would require preferential treatment for pregnant employees in violation of the Ohio statute and, thus, would be unconstitutional. However, the Court found the Rule to be vague and ambiguous on this point and, thus, chose to harmonize it with the second part of the Rule and interpret it as being constituent with the Ohio statute. Without such an interpretation, the second part of the Rule would be rendered meaningless. According to the Court, the OCRC rule provides in effect that:

Ohio Adm. Code 4112-5-05(G)(2) must mean that when an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave for temporary disability due to pregnancy or a related condition.

Because the woman offered no other proof of discrimination on account of sex or pregnancy, the Court affirmed the dismissal of her case by the trial court.

Justice Pfeifer dissented.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court Hears Arguments On Mandatory Maternity Leave

This morning, the Ohio Supreme Court heard oral argument on whether the Ohio Civil Rights Commission exceeded its authority by requiring Ohio employers to provide a reasonable amount of maternity leave to new employees even when similar leaves are not provided to new male employees. In particular, an employee was fired by an Ohio nursing home when she required maternity leave before she had been employed at least one year as required by the employer's uniformly applied leave policy. No employees are given a leave of absence under the policy until they have been employed at least one year.

Certain provisions of the Ohio Civil Rights Act mirrors the federal Pregnancy Discrimination Act, which prohibits discriminating against women on account of pregnancy. There is no provision under the federal or state statute explicitly requiring a leave of absence for female employees that is not also provided to male employees; it merely prohibits discrimination. Some courts have ruled that the PDA does not require maternity leave unless males are given similar leaves of absence; thus the FMLA was created. The OCRC determined, however, that women would never be able to keep jobs if they got pregnant under such policies and has required Ohio employers to provide a reasonable amount of maternity leave even if they did not otherwise provide any leaves to other employees. In doing so, the OCRC relies on a single federal court decision.

An argument was made that the OCRC exceeded the Ohio constitution by creating a rule which lacks explicit statutory support. To the extent that the OCRC is attempting to create public policy, the argument goes, that should be left to the Ohio General Assembly. Citation was made to three other states which have enacted such laws.

The Attorney General's office also tried to draw an analogy to the reasonable accommodation provisions of the ADA and Title VII's religious discrimination clause. However, unlike the PDA, those statutes explicitly require employers to provide a reasonable accommodation. Thus, merely because an employer is required by statute to provide a leave as a reasonable religious or disability accommodation does not mean that the PDA (or corresponding Ohio statute) requires the same in the absence of similar statutory language.

The Ohio Supreme Court was provided with an earlier opportunity this year to address whether the Ohio statute requires reasonable accommodation of lactating mothers in Allen v. Totes/Isotoner Corp, but it declined to address this issue at that time.

Insomniacs can watch the oral argument in Nursing Care Management of America, Inc., d.b.a. Pataskala Oaks Care Center v. Ohio Civil Rights Commission, No. 2009-0756 here or on the PBS Ohio Channel.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.