October 15, 2019
HR Oops! Pregnancy Accommodations Denied
On October 15th, Walmart settled for $14 million a class action lawsuit involving three former employees who alleged they were discriminated against in violation of the federal Pregnancy Discrimination Act (PDA). One employee alleged that she provided her HR representative with a doctor’s note, indicating a need for an accommodation to not climb ladders or lift more than 25 pounds. In response, the HR rep declined to provide an accommodation. Instead, the employee was told she had to take a leave of absence. (Oops) The company policy reportedly provided accommodation only for employees who incurred work-related injuries. (Oops) When the employee returned to work, she was placed in a lower paying job. (Oops).
A second plaintiff alleged she was also provided a doctor’s note indicating her need for an accommodation to avoid heavy lifting. Her supervisor declined the request. The plaintiff then reportedly asked another manager if she could transfer to another position that did not require heaving lifting. That manager declined her request. The employee subsequently asked for a copy of the company’s policy on taking leave for childbirth. The next day that she reported for work, she was fired. (Oops).
The third plaintiff’s complaint was very similar to the first. She also provided her HR representative (a different one) with her doctor’s note requesting an accommodation to avoid more than 20 pounds. This HR representative also declined the request and told the employee she must take a leave of absence (Oops).
- Before you worry about whether a medical condition requires accommodation under the Americans with Disabilities Act (ADA), PDA or any state law, you may want to consider engaging your employee in an interactive dialogue to determine what (reasonable) accommodation(s) the employee needs. Then, determine if you can reasonable provide it or not.
- Review your related policies. In 2015, the US Supreme Court held that a policy that accommodates only workers who incur work-related injuries may violate the PDA. Why? Because the policy provides accommodation for non-pregnant employees but does not do so for pregnant employees. SCOTUS held that the plaintiff must show “evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”
- After the SCOTUS ruling described above, the EEOC updated its related guidance. This guidance now reads, in part, that a similar policy may be challenged if it, “impermissibly distinguishes between pregnant and non-pregnant workers who are similar in their ability or inability to work based on the cause of their limitations.”
- Remember the purpose of accommodations is to enable an employee to perform the essential functions of the job, not requiring them to take time off from work to return only when they can perform those essential functions.
- Just because a condition is temporary does not mean it does not require accommodation under the ADA, PDA or a related state law. Know what the laws in your states of operation require for pregnancy and/or pregnancy-related disabilities.