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How Is An Employer Expected to Accommodate A Pregnant Worker?

As we prepare for a possible post-coronavirus baby boom, it’s a good time to look at the Pregnancy Discrimination Act.

Some employers have carved out light duty jobs that are reserved for workers who have suffered work-related injuries.  These jobs are used to transition injured workers off of workers’ compensation benefits and back to work.  However, a new case out the Eleventh Circuit Court tells us that the employer that fails to offer these light duty jobs to pregnant employees with medical restrictions risks being liable for discrimination. (Durham v. Rural/Metro Corp. , 11th Cir., 18-14687, 4/17/20 ).

Durham was an emergency medical technician (“EMT”) whose job required her to lift 100 pounds regularly. When Durham became pregnant, her physician advised her to refrain from lifting more than 50 pounds. So Durham asked her employer, Rural/Metro Corp., for a temporary light-duty or dispatcher assignment for the duration of her pregnancy. Rural had provided these same accommodations to other EMTs who had suffered injuries on the job and were restricted to lifting no more than 10 or 20 pounds as a result. On the other hand, Rural had a policy of not granting such accommodations to employees who had been injured off the job. Rural also had a policy that allowed it to accommodate those with disabilities on a case-by-case basis.  Rural declined Durham’s request for accommodation, and Durham filed suit, alleging discrimination under the Pregnancy Discrimination Act (PDA).

The issue that was discussed in detail by the Eleventh Circuit was whether Rural accommodated others who were not pregnant but were “similar in their ability or inability to work”  to Durham.   The Court stated that  “the comparator analysis under the PDA focuses on a single criterion—one’s ability to do the job.”  Therefore, Durham’s temporary inability to lift more than 50 pounds and her colleagues’ inabilities to lift more than 10 or 20 pounds rendered Durham, and her colleagues injured on the job, equally unable to perform the 100-pound lifting duties of an EMT. Thus, Durham and her colleagues who were injured on the job were “similar in their ability or inability to work.”

The burden would then shift to the employer to show a legitimate, nondiscriminatory reason for treating the pregnant employee differently from non-pregnant employees.  The case was remanded back to the District Court for this analysis.

What does this mean for employers?  In the Eleventh Circuit (Georgia, Alabama, Florida), employers need to treat employees with pregnancy related medical restrictions similarly to other employees with medical restrictions when it comes to making accommodations at work.

 

Kathleen J. Jennings
Author: Kathleen J. JenningsEmail: This email address is being protected from spambots. You need JavaScript enabled to view it.
Principal
About:

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.

View her attorney profile page here.

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