By Marjorie Johnson, J.D.
A jury should have decided whether a county and its sheriff unlawfully denied a pregnant correctional officer’s request for light duty pursuant to its policy granting light duty only to workers who were injured on-the-job, the Second Circuit ruled in vacating the dismissal of her Title VII pregnancy discrimination claim at the close of her direct case. Pursuant to the U.S. Supreme Court’s recent decision in Young v. United Parcel Service
, pregnancy bias could be inferred if the facially neutral accommodation policy imposed a significant burden on pregnant officers that was not justified by its non-discriminatory explanation (compliance with the state workers’ compensation law) (Legg v. Ulster County
, April 26, 2016, Parker, B.).
Pregnancy bias post Young.
During the pendency of this appeal, the Supreme Court decided Young
to resolve how the PDA’s "same treatment" clause applied to pregnancy bias claims brought under a disparate treatment theory. Similar to this case, Young
involved a pregnant employee who was denied a lifting accommodation even though UPS provided accommodations to workers who were injured on the job, had lost their DOT certification, or suffered from an ADA-covered disability. The Supreme Court held that an employer’s neutral accommodation policy gives rise to an inference of pregnancy bias if it imposes a significant burden on pregnant employees that is not justified by its non-discriminatory explanation.
Prima facie case.
The officer easily established a prima face case under Young
. She sought and was denied a light duty accommodation while pregnant, Yet, as a matter of policy, the county provided light duty accommodations to other officers who could only work light-duty tasks due to on-duty injuries. This was enough for a reasonable jury to conclude that it was more likely than not that the policy was motivated by discriminatory intent.
Neutral policy pretextual?
She also cast doubt on the county’s assertion that its light duty policy was non-discriminatory and justified since municipalities were required under state law to continue to pay corrections officers injured on the job. The Second Circuit agreed that compliance with a state workers’ comp scheme was a neutral reason for providing benefits to employees injured on the job but not pregnant employees. Indeed, this was the same neutral reason offered by UPS in Young
. However, the officer presented ample evidence of pretext.
First, the record revealed that the county presented inconsistent reasons for refusing to extend light duty to her as a pregnant officer, including the sheriff’s alleged belief that it was for her and her unborn child’s safety as well as the county’s concerns with the cost. Moreover, pursuant to Young
, a reasonable jury could conclude that the county imposed a significant burden on pregnant employees since the officer was the only one out of 176 corrections officers who became pregnant and was denied an accommodation. Thus, the county failed to accommodate 100 percent of its pregnant officers. Because the focus was on how many pregnant officers denied accommodations in relation to the total number of pregnant officers (not in relation to all officers), the county could not justify pregnancy bias by the fact that pregnant officers constituted an insignificant part of its workforce.
The Second Circuit rejected the county’s assertion that that she did not suffer a significant burden since she eventually returned to performing her job duties before deciding to stop working until after she gave birth. A reasonable jury could find that although she gradually returned to full duty work after her boss slowly reneged on his informal promise of light duty, she acquiesced only until she suffered a serious health scare. Moreover, when an accommodation policy excludes pregnant employees and thereby places them at risk of violent confrontations, a reasonable jury could find that the denial itself was evidence of a significant burden.
Finally, although the county argued that the state workers’ compensation law applied only to those injured on duty, nothing in the statute prevented them from offering the same accommodations to pregnant officers. The record also suggested that cost was a factor since it lacked the same financial incentive to continue to employ pregnant officers in some capacity and had a countervailing incentive to replace them. Thus, a jury could reasonably find that compliance with the state compensation law was an insufficient reason for denying accommodation to its only pregnant corrections officer.
This was not to say that the officer would necessarily win at trial. The PDA does not grant pregnant workers a "’mostfavored-nation" status, entitled to any accommodations provided to others. Rather, the legality of policies limiting light duty depends upon a careful analysis of the particular facts. If the evidence showed that the county accommodated very few injured workers under its light duty policy and that many non-pregnant workers were among those denied an accommodation, a jury might reasonably refuse to infer discriminatory intent. Moreover, the policy was not necessarily doomed by the fact that it was partially motivated by cost.
The county won its own victory, however, by reviving its motion for judgment as a matter of law or for a new trial on the officer’s gender-based HWE claim. After the jury returned a verdict in her favor on this claim, the county was granted its motion for an extension of time to file its post-trial motions. However, the court denied the motions after they were filed for want of jurisdiction, believing that it lacked authority under Rule 6(b)(2) to grant an extension and that the time limitations were jurisdictional. Disagreeing, the Second Circuit held that the Rule 6(b)(2) is not jurisdictional and that the court had discretion to consider whether the officer waived compliance with the rule or if an equitable exception applied. Accordingly, the post-judgment orders were vacated and the matter remanded.