Employment Law Daily Walmart may be liable for discrimination against pregnant workers
Wednesday, April 4, 2018

Walmart may be liable for discrimination against pregnant workers

By Lorene D. Park, J.D.

Refusing to dismiss a putative class action alleging that Walmart’s then-policies discriminated against pregnant workers and had a disparate impact based on sex, a federal district court in Illinois found the Title VII claims sufficiently supported by one employee’s allegation that she was forced on leave while pregnant and then paid less upon her return and a second employee’s claim that she was fired after asking for information on maternity leave. Both alleged that they were denied accommodations for pregnancy-related physical limitations while non-pregnant workers who had workplace injuries or disabilities were provided accommodations for similar limitations (Borders v. Wal-Mart Stores, Inc., March 29, 2018, Reagan, M.).

Two Walmart employees filed this putative class action claiming the retail giant had discriminatory policies and practices with respect to pregnant employees who required workplace accommodations due to their pregnancies.

Assisted by coworkers after fall from ladder. One of the plaintiffs worked at an Illinois Walmart from 2012 to April 2017. Part of her duties included climbing ladders and lifting heavy objects. Early in her Spring 2013 pregnancy, the employee slipped off a ladder, causing her to fear for the safety of her fetus. Thereafter, her coworkers helped her when she needed to climb or lift heavy objects and, with that assistance, she was able to continue working while pregnant.

Forced unpaid leave, paid less. After several months, a Walmart rep noticed the employee wasn’t using a ladder and told her that she had to provide a doctor’s note to continue working. The employee provided a doctor’s note indicating she could not lift over 25 pounds or climb ladders and she asked to continue working with the assistance of her coworkers. An HR rep told her that she would have to take an unpaid leave of absence because Walmart only accommodated employees with medical conditions that arose from on-the-job injuries. The employee was required to take an unpaid leave of absence and, when she returned after her child was born, her pay grade was lowered and she went from $10.85 per hour to $8.85 per hour.

Told pregnancy was no excuse. The second plaintiff worked in a Florida Walmart between August 2013 and January 2014. She learned she was pregnant in September 2013 and informed her supervisor. Soon thereafter she had pain and bleeding and went to the emergency room, where she was warned she had a high risk of miscarriage and should avoid heavy lifting. She told her supervisor of her instructions on lifting, and tried to provide medical discharge paperwork, but the supervisor would not accept it. Instead, the supervisor explained that she should leave if she could not due the heavy lifting required of her job. The supervisor also allegedly called the employee a liability who was trying to cost Walmart money, told the employee that pregnancy was no excuse for physical limitations, and referred to actress Demi Moore doing a somersault on T.V. while pregnant. The employee then asked another manager if she could transfer to a cashier position but she was told no because she had not worked there long enough. After she requested information on Walmart’s policy for maternity leave, she was fired.

Walmart’s policies. Until March 2014, Walmart had what plaintiffs described as a constellation of policies and practices governing modifications and accommodations offered to employees in need of workplace changes due to health issues. It allowed for certain non-pregnant workers, who had similar abilities or inabilities to perform job tasks as pregnant employees, to receive accommodations to which pregnant employees were not entitled. Pregnant women who were limited in their physical abilities due to their pregnancies were only offered job aids or environmental adjustments, while others with similar abilities or inabilities who were not pregnant, such as workers injured on the job or workers with disabilities, were offered full accommodations.

Based on this, the plaintiffs raised claims of intentional sex discrimination and disparate impact on female employees. They also claimed they experienced retaliation for seeking accommodations and requesting information on maternity leave.

Personal jurisdiction in Illinois. Denying Walmart’s motion to dismiss, the court first rejected the retail giant’s challenge to personal jurisdiction. Though Walmart did not contest that it purposefully avails itself of the privilege of doing business in Illinois it argued that specific jurisdiction was inappropriate because there is no connection between its Illinois activities and its conduct with respect to the Florida employee. It also argued that general jurisdiction was inappropriate because it is incorporated in Delaware and its principal place of business is in Arkansas. But, noted the court, Walmart does more business and hires more workers in Illinois than in almost every other state in the country, including its two “paradigmatic” home states. This was enough to establish personal jurisdiction at this point.

Disparate treatment claims. The court also concluded that the employees plausibly alleged intentional discrimination based on sex under Title VII as amended by the Pregnancy Discrimination Act. Specifically, they alleged that they were in the protected class, sought accommodations, and were denied even though Walmart did accommodate others “similar in their ability or inability to work.” That was enough to state a disparate treatment claim.

Disparate impact claims. The employees claimed Walmart offered accommodations to workers who had disabilities or on-the-job injuries but pregnant women were excluded from eligibility for such accommodations, leading to female employees disproportionately being denied accommodations offered to those with similar abilities or inabilities to work. They also pled a number of statistical allegations demonstrating the disparate impact of Walmart’s policies and practices on women. This was enough to avoid dismissal under Rule 12(b)(6).

Retaliation claims. The retaliation claims also advanced. One employee claimed she was forced to take unpaid leave after requesting job modifications and upon her return was paid less than before. And the second employee claimed she was fired after asking for information on taking leave for childbirth and recovery and in retaliation for requesting accommodations for her pregnancy. This was enough to state plausible retaliation claims under Title VII, concluded the court, also refusing to dismiss this claim.

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