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Employment & Labor Law Group

TO: Clients, Friends and Colleagues of Rhoads & Sinon

FROM: David F. O’Leary

RE: Employment Law Note #4. Do Employers Have the Legal Duty to “Accommodate” Pregnant Employees? (January 2003)

Periodically (no more than once a month), I write a brief essay on an employment law issue in which I am interested and I hope you find interesting, too. I try to provide practical advice. Please do not hesitate to contact me if you have any questions or comments.

Do Employers Have the Legal Duty to “Accommodate” Pregnant Employees?

Some employers (and many employees) assume that employers have the same duty to accommodate pregnant employees under the Pregnancy Discrimination Act (PDA) as they do to accommodate disabled employees under the Americans with Disabilities Act (ADA). But this isn’t true. The ADA requires an employer to extend a helping hand to disabled employees by requiring employers to “accommodate” the employee’s disability. In other words, the ADA promises “fair” treatment to disabled employees.

The PDA, on the other hand, does not promise fair treatment to pregnant employees, just consistent treatment. Employers are not required to accommodate pregnant employees, only treat them no better or worse than non pregnant employees (male and female) who have temporary health problems.

A recent case illustrates the point. In Horton v. American Rail Car Industries, Inc., 89 FEP Cases, 916 (U.S. D. Ct. Arkansas 2002), a pregnant employee told her employer that she could not do her regular job because of her pregnancy and asked the employer to provide her with a “light-duty” assignment as recommended by her physician. The employer refused on the grounds that only employees who had an occupational injury or illness (a workers’ compensation claim) were eligible for “light-duty” assignments. (Because she was a new employee, she was not entitled to leave under the Family & Medical Leave Act) The employer asked her to resign. When she refused, she was terminated.

The employee filed suit in Federal Court under the PDA, which prohibits discrimination “on the basis of pregnancy, childbirth or a related medical condition.” The District Court threw the case out on the grounds that the employer’s decision to deny the “light-duty” position to the pregnant employee because her pregnancy was not an occupational accident or illness was neither sex discrimination nor discrimination based on her pregnancy. Accordingly, there was no violatioin of the PDA. The Court said “As the 7 th Circuit candidly stated the [PDA] does not require that employers make accommodations for their pregnant workers: Employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees Geier v. Medtromic, 99 F.3d, 232, 242 (7 th Cir. 1996).”

In this case, if the pregnant employee had been able to prove that the employer had in fact accommodated male or female employees who had temporary non-occupational illnesses or accidents, then she may have been able to argue to a jury that she was being discriminated against because of her pregnancy. But she could not do so.

In addition, if the employee could have pointed to a provision in the employee handbook promising “light-duty” work to employees with occupational or non occupational health problems, the employee could have brought an action for breach of employment contract against the employer. But there was no such employment handbook provision.

This case also illustrates the common employer practice of treating employees with occupational injuries or accidents (i.e. workers’ compensation claims) better than employees with non-occupational injuries or accidents. This is lawful. The converse is not. Employers cannot lawfully treat employees who have occupational injuries or accidents worse than employees with non-occupational injuries or accidents. That conduct runs afoul of the public policy that employers may not take discriminatory action against employees because of workers’ compensation claims.

Conclusion and Recommendation

The ADA (which does not cover temporary health events, such as pregnancy) requires employers to accommodate employees with disabilities. The PDA (which specifically protects pregnant employees) does not require employers to accommodate pregnant employees but only treat them the same as non-pregnant male and female employees who have temporary health problems. Consistency is the key to compliance under the PDA. Employers may discriminate in favor of employees who have temporary occupational injuries or accidents (workers’ comp claims) against those who have non occupational injuries or accidents, but employers run afoul of the law if they treat employees with non occupational injuries or accidents better than employees with occupational injuries or accidents. Check your employee handbook to see if it complies with the law or enhances the rights of employees beyond what is required in the law.