Accommodating Pregnant Workers

Pregnancy is rough. There is this creature growing bigger and bigger in your body and it makes you tired, uncomfortable, and nauseous. And that is the best-case scenario. Many women experience complications that make the process even more difficult and dangerous.

Hopefully, Beyonce won’t experience pregnancy discrimination (photo: instagram.com/beyonce)

On top of all that, pregnant women still have to go out and make a living. Unfortunately, employers do not always make that easy. It may shock you to learn that employers are not always fair to pregnant workers. Add that to the list of pregnancy hardships.

Luckily, there is a law that protects women in the workplace. The Pregnancy Discrimination Act requires employers to treat pregnant women fairly. This means employers cannot fire a woman because she is pregnant. And it means that employers have to treat pregnant women the same as any other employee when it comes to making changes to assignments or job duties.

Luke vs. CPlace Forest Park is a case before the Fifth Circuit Court of Appeals that asks several questions about the Pregnancy Discrimination Act. How do we decide which changes an employer has to make for a pregnant worker? How do we decide whether a pregnant worker is being treated the same as other employees? Who do we compare her to?

CPlace operates rehab centers. It employed Luke as a certified nursing assistant (CNA) for about a year when it learned she was pregnant with twins. Soon after, CPlace learned that Luke’s doctor told her she could not lift heavy objects for two weeks. That was fine with CPlace, but only for a couple days.

After that, CPlace forced Luke to take medical leave for two weeks because it said her lifting restriction meant she had to be on “light duty” and there were no “light duty” positions “at that time.” Luke came back to work with no restrictions and was able to work another six weeks.

By then, Luke was around 3 months pregnant with twins. Her doctor told CPlace she could work regular hours so long as she did not lift anything over 30 lbs for the rest of her pregnancy. CPlace was not having it and forced her on leave again. CPlace never did let Luke come back to work and fired Luke when she was 8 months pregnant.

Here is some of the proof that CPlace broke the rules of the Pregnancy Discrimination Act, and why Luke should win her appeal.

CPlace made changes to job duties for other CNAs. If other CNAs get help lifting, why not Luke?

We all know the saying, what’s good for the goose is good for the gander. Luke’s cases show us that pregnant geese are no different.

Remarkably, the evidence shows that Luke was the only employee who was not allowed to get help with lifting. Other CNAs got help, other pregnant CNAs without pregnancy complications got help, and even Luke herself got help lifting before she was pregnant.

CPlace’s employee handbook tells workers to get help lifting if they need it. Nobody wants rehab patients getting dropped on the ground! There’s a machine that helps workers lift patients up out of bed or into a chair. And non-pregnant workers get help lifting all the time. How does Luke know that? Because she was a non-pregnant worker that got help lifting. Luke is able to compare her pregnant-self to her non-pregnant self, and show the difference in treatment.

When a non-pregnant worker had medical restrictions, CPlace had a practice of transferring that worker to a different, available position. Other workers with restrictions got put on light-duty.

For reasons that are unclear, the lower court did not think Luke’s evidence was valid. It decided that Luke could not perform the lifting required by the job, even though there is no lifting requirement in the CNA job description. It refused to accept Luke’s comparisons to other employees because it said Luke only sought “light-duty” positions, not help with lifting.

Conclusion

The lower court’s decision repeats a common mistake that happens in employment cases: it ignores common sense evidence that supports the employee’s claims and instead accepts everything the employer says is true. In Luke’s case, that makes being pregnant at work even harder.

Lawyers for several civil rights groups, the ACLU, the Women’s Rights Project, and the Center for Worklife Law, wrote a brief to the Fifth Circuit urging the Appeals Court to find in favor of Luke and let her case proceed to trial. This brief was joined by many, many other organizations that supports workers’ rights and women’s rights, including the National Employment Lawyers Association and the Texas Employment Lawyers Association.

Hopefully the Fifth Circuit will correct this mistake and let a jury decide whether CPlace has broken the rules that protect pregnant workers.