Must Employers Assign Pregnant Truckers to "Light Duty" Posts? The U.S. Court of Appeals for the Sixth Circuit Says No
By JOANNA GROSSMAN
Tuesday, Jun. 13, 2006
On her application for a job driving a truck, Amanda Reeves wrote that she could lift 75 pounds and carry that weight for 56 feet, and that she could lift 60 pounds over her head. She was hired. But in her first three months on the job, she never, in fact, had to unload a truck herself (or carry anything weighing 75 pounds).
After her first three months of work, Reeves discovered she was pregnant. Her doctor wrote a note restricting her to "light work," and indicated that she should not lift more than 20 pounds. When she showed the note to her employer, her supervisor said they had no "light work" for her to do, and sent her home. The company then continued to deny her daily requests for light work, citing its policy that only on-the-job injuries merited light-duty assignments, and eventually fired her.
Is this illegal pregnancy discrimination? The U.S. Court of Appeals for the Sixth Circuit just ruled -- in Reeves v. Swift Transportation Company, Inc. -- that it is not. In so holding, the Sixth Circuit joined two other fairly politically conservative federal circuits, the Fifth and Eleventh, which have reached the same conclusion in similar cases. More politically liberal Circuits - such as the Second and Ninth -- have yet to weigh in.
This case is an important reminder of the limited rights pregnant women have against discrimination. If workers like Reeves are to be protected, it seems that Congress state legislatures, or individual cities, may have to pass new laws and regulations, or extend existing ones, in order to help them.
The Supreme Court's Claim: Pregnancy Discrimination Is Not Sex Discrimination
The law governing pregnancy and work derives from a patchwork of mostly federal statutes. There is no meaningful constitutional protection against pregnancy discrimination, because the Supreme Court ruled in 1974, in Geduldig v. Aiello, that pregnancy discrimination is not sex discrimination and, therefore, does not invite heightened scrutiny.
That reasoning was applied two years later to Title VII of the Civil Rights Act of 1964, a broad-ranging anti-discrimination-in-employment law. In General Electric v. Gilbert, the Supreme Court held that Title VII's ban on sex discrimination in employment did not extend to pregnancy discrimination.
For a brief period in the 1970s, then, pregnant working women were essentially without protection from being not hired, fired, or forced on leave. Those practices were common at the time, and, many times, embodied in express employer policies. With no law to protect them, pregnant women faced terrible hurdles when trying to work while pregnant, or to return to work after giving birth.
Congress Steps In: The Pregnancy Discrimination Act and Later, the FMLA
Congress began to lay the groundwork for greater protection in 1978, when it enacted the Pregnancy Discrimination Act (PDA). The PDA amends Title VII - the main federal antidiscrimination statute -- in two important ways:
First, it states that pregnancy discrimination is, indeed, sex discrimination and, therefore, prohibited by the statute. (Thus, it overturns the Supreme Court's contrary interpretation of Title VII in General Electric v. Gilbert.) That change is important because it prevents employers from singling out pregnant women for adverse treatment and from adopting policies that have a disparate impact on them as a class.
Second, it states that pregnant employees "shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." (This clause was interpreted by the Supreme Court in 1987 in California Federal Savings & Loan Association v. Guerra to establish a floor rather than a ceiling on benefits for pregnant women; employers must treat pregnant women "as least as well as" temporarily disabled employees, but they can lawfully treat pregnant women better if they so choose.)
This guarantee of equal treatment applies mostly to leave policies, and dictates when and under what conditions pregnant women must be permitted to take leave for pregnancy-related disability or for childbirth. The right contained in this clause, however, is strictly comparative. An employer only has to provide leave for childbirth, for example, if it provides leave for other temporary disabilities.
That left a serious gap in protections for pregnant women: Most biological mothers require at least a short period of leave following childbirth. But if they took that necessary leave, and if their employers did not provide leave (paid or unpaid) for disability, then they could legally lose their jobs.
In 1993, the Family and Medical Leave Act (FMLA) filled that gap. Under the FMLA, employees are entitled to 12 weeks of unpaid leave per year if needed for pregnancy- or childbirth-related disability, or to care for a newly-born or newly-adopted child. (The FMLA also provides this leave for an employee's own serious health condition, or to provide care for an immediate family member with a serious health condition.)
Unfortunately, this leave is unpaid, and therefore not feasible for many employees to take. But at least it provides pregnant women who need childbirth leave with benefits during their leave, and with job security: They no longer can be legally fired for simply doing what's necessary.
Is There a Right to "Light Duty" Work for Pregnant Women? Reeves's Case
Even with these two important federal laws on the books, pregnant women often find it difficult to successfully combine working and reproduction. One recurring issue is work during pregnancy itself: What happens when a woman is temporarily unable to carry out some or all of a job's duties because of pregnancy?
That was the case for Amanda Reeves, who sought temporary dispensation from the lifting requirement in order to continue working as a truck driver throughout her pregnancy. Her employer, however, denied the request, citing its express policy of providing "light duty" assignments only to employees who were injured on the job. Pursuant to this policy, workers who suffered disability because of pregnancy -- or any other off-duty cause -- had to either continue work as usual, or risk losing their job,.
In other circumstances, an employee like Reeves might have taken unpaid FMLA leave to cover at least part of her pregnancy. To be eligible for FMLA leave, however, an employee must have worked 1250 hours for the same employer in the previous year; Reeves had begun work only a few months earlier.
After being fired, Reeves sued her employer, Swift Transportation, under the Pregnancy Discrimination Act. She argued that Swift's policy was expressly discriminatory, in that it provided light-duty assignments to employees who could not perform heavy lifting, but not to pregnant employees who could not perform heavy lifting.
The trial court granted summary judgment to Swift, and the appellate court affirmed. Swift's policy, both courts ruled, was "pregnancy-blind". It simply distinguished between disabilities incurred at work (covered) and disabilities incurred elsewhere (not covered). (Presumably, then, pregnancy would be covered only if it resulted from an on-the-job rape!)
To establish that Swift's policy - and the company's actions pursuant to it - was unlawful, Reeves had to show discriminatory intent. She argued that the "neutral" policy was a pretext for discrimination against pregnant women. However, Swift explained its policy in neutral terms (the on-the-job/off-the-job distinction), and the court held that Reeves failed to prove that the company acted with discriminatory intent when it adopted the policy, or when it applied the policy to her.
Was Reeves Really Asking for "Preferential" Treatment, as the Court Suggested?
According to the Sixth Circuit, Reeves was essentially asking not for equal treatment, but for preferential treatment. She wanted to be granted a light-duty assignment, even though other employees who became disabled off duty would be denied one. The court held, however, that as long as the company treated pregnant women no worse than it treated employees with comparable disabilities, its actions did not violate the PDA.
Arguably, the problem with the Sixth Circuit analysis is that it is assumes a comparison group that may not be the correct one: It compared the treatment of Reeves with the treatment of employees with temporary disabilities incurred off duty - and found she was treated no worse? But what if the comparison group were, instead, employees with temporary disabilities? Reeves was treated worse than at least some of these employees - the ones who incurred on-the-job injuries.
Nevertheless, the Sixth Circuit held that it was, in effect, up to the employer to choose the relevant comparison group: As long as the employer is not motivated by discriminatory intent, the law permits it to select any neutral criteria for limiting the availability of light duty assignments.
Another approach, which Reeves did not pursue, would have been to allege and prove that the policy had a disparate impact on female or pregnant employees. Title VII (including the provisions of the PDA) prohibits employers not only from intentionally discriminating, but also from taking employment-related actions that disproportionately disadvantage protected groups.
This theory is currently being used by a group of female officers in the Suffolk County Police Department (SCPD) in New York. These officers are challenging a similar light duty rule to the one at issue in Reeves, and the trial in their case began last week. (I'll discuss this case in my next column.)
Federal Law Should Better Protect Pregnant Workers
In sum, federal law does not require even minimal accommodation for pregnancy-related disability, as long as the employer treats pregnant employees at least as well as other temporarily disabled employees. In Reeves, the employers adopted a "neutral" policy that differentiates between on-duty disabilities (which does not include pregnancy) and off-duty disabilities. And this neutrality, under the law, provides a powerful defense.
While this policy might well pass legal muster (assuming lack of evidence of discriminatory animus or intent), a blanket refusal by employers to accommodate any disability resulting from pregnancy makes it difficult for women to succeed at many jobs. After all, eighty-five percent of working women become pregnant at some point during their working lives, and more than half of the women who give birth in any given year were working at the time.
It's true that the FMLA affords some protection, by guaranteeing many employees the right to a period of unpaid leave. But it also has important limitations. Many women cannot afford to take unpaid leave, and only employees of larger employers who have worked nearly full-time for the previous year are eligible.
Pregnancy is not inherently disabling. Many women can continue their jobs without any accommodations at all. (Being a pregnant law professor, for example, is easily accomplished.) But even with a normal pregnancy, there are often limitations on specific physical movements, such as heavy lifting. One problem with a legal framework that does not require employers to accommodate pregnancy-related disability is that it exacerbates the deeply entrenched gender segregation in jobs that require physical strength -- such as truck driving, construction, and law enforcement.
There has been a marked increase in pregnancy discrimination in the last ten years. The EEOC reports a more than thirty-percent increase in filings since 1992, after many years of almost no increase. Verizon just recently settled the second largest pregnancy discrimination lawsuit, which will result in the payment of millions in damages and the restoration of "service credits" to employees who were docked them because of pregnancy many years ago.
It is time to rethink the law's approach to pregnancy discrimination. While the current law is a huge improvement over the era in which pregnant women faced open, legal discrimination, pregnancy is still an unfair obstacle to women's success in the workplace.