By Brandi O. Brown, J.D.
A court “erroneously factored” into the prima facie case the employer’s policy-based explanation for its failure to accommodate a pregnant EMT.
An employer that accommodated injured employees with lifting restrictions but refused to do the same for a pregnant EMT will face renewed litigation after the Eleventh Circuit vacated a summary judgment decision in the employer’s favor. In considering whether the pregnant employee and other employees who were granted accommodations were “similar in their ability or inability to work,” the district court erroneously factored in the employer’s stated legitimate reason for denying accommodation to the pregnant employee while accommodating the lifting restrictions of employees injured on the job, and so misapplied the prima facie analysis laid out by the U.S. Supreme Court in Young v. United Parcel Service. Judge Boggs wrote separately in concurrence (Durham v. Rural/Metro Corp., April 17, 2020, per curiam).
Lifting restriction. When the employee, an EMT, became pregnant, her doctor advised her not to lift more than 50 pounds. The restriction was a problem because some of her job duties required her to assist with lifting stretchers and people. Therefore, she informed the general manager about her pregnancy and her lifting restriction. They agreed that she would not be able to work on the truck and the employee asked to work either light-duty or dispatch.
No light-duty or dispatch jobs? Under its light-duty policy, the employer would temporarily modify an employee’s position or provide transitional job assignments to accommodate temporary physical restrictions. However, the policy purportedly applied only to employees recovering from work-related injuries or illnesses. Dispatch jobs, on the other hand, were dedicated positions. According to the employee, there were dispatch openings posted at the time, but the general manager told HR that there were no light-duty or dispatch positions available.
In that case, the employee’s only option was to use unpaid personal leave, HR said. Personal leave was limited to 90 days, with only the possibility of a single 90-day extension, and the employee would not be paid during that time. So the employee instead sought to continue working as an EMT, despite the restrictions. The employer required her to provide a medical release, but she did not provide one, and she did not seek unpaid leave. Thereafter, she was taken off the schedule. She filed suit alleging a violation of the Pregnancy Discrimination Act.
Accommodations for on-the-job injuries. Discovery revealed that the employer had offered accommodation to four employees with lifting restrictions who had been injured on the job. It also revealed that the employee handbook did not, by its terms, limit its accommodation policy covering employees with medical conditions to employees with on-the-job injuries.
The district court granted the employer’s motion for summary judgment, and the employee appealed.
Young’s prima facie analysis. In Young v. United Parcel Service, the Supreme Court announced a modified McDonnell Douglas framework for claims under the Pregnancy Discrimination Act. To state a prima facie case, an employee whose request for accommodation was refused must show that the employer accommodated other employees who were “similar in their ability or inability to work.” The rest of the burden-shifting framework remains the same: the employer must then come forward with legitimate, nondiscriminatory reasons for denying the accommodation, and the employee must demonstrate that those reasons are pretextual.
However, in this case, the district court jumped the gun: it “erroneously factored into the ‘similar in their ability or inability to work’ evaluation consideration of the employer’s stated legitimate, nondiscriminatory reasons for treating [the plaintiff] and the non-pregnant employees differently.” Had it applied the modified framework properly, the employee’s inability to lift more than 50 pounds would have been compared to her colleagues’ inability to lift more than 10 or 20 pounds. All were “equally unable to perform the 100-pound lifting duties of an EMT” and were therefore “similar in their ability or inability to work.” Furthermore, the employee handbook left open the possibility that the employer had similarly accommodated employees who were disabled off the job, including those with lifting restrictions.
The employer offered two reasons for refusing to offer her either light-duty work or a dispatcher position—that the light-duty work was created only for those who were injured on the job and that no dispatcher positions were available at the time. To survive summary judgment, the employee then must point to evidence creating a material fact issue on pretext. She could do so by demonstrating that the employer’s policies imposed a more significant burden on pregnant employees and that the reasons for its policies were not sufficiently strong to justify their burden. Thus, the employee established a prima facie case.
Concurrence. Judge Boggs concurred, writing separately only because he feared the explanation of Young set forth in the lead opinion “does not fully capture the complexities of that opinion and the gaps it leaves in our understanding of how trial courts should proceed in PDA cases once a prima facie case is made.” Judge Boggs noted that an employer may still argue that it did not discriminate because it treated a pregnant employee the same way it treated another employee injured away from the job—only that such an argument and the questions it raises are left to be decided “in the legitimate-reasons and pretextual inquiries of the Young test, not at the prima facie stage.”
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