In Young v. UPS, Inc., the Supreme Court concluded that an employee who alleges that the denial of an accommodation amounted to disparate treatment under the Pregnancy Discrimination Act (PDA) may set forth a prima facie case by showing that she belongs to PDA’s protected class, she sought an accommodation, the employer refused to provide an accommodation, and the employer accommodated others “similar in their ability or inability to work.” 135 S. Ct. 1338, 1355 (2015). In Hicks v. City of Tuscaloosa, No. 16-13003 (11th Cir. Sept. 7, 2017), the Eleventh Circuit applied Young to uphold a jury award in favor of a former police officer who was denied a breastfeeding accommodation.
Stephanie Hicks was a patrol officer and then a narcotics task force investigator for the Tuscaloosa, Alabama Police Department. Hicks was working on the narcotics task force when she became pregnant in January 2012. Hicks’ captain allowed her to work pharmaceutical fraud cases so that Hicks did not have to work nights and weekends. This arrangement bothered Hicks’ supervisor, a female lieutenant. That same supervisor told Hicks that she should take only six weeks of FMLA leave. Hicks took 12 weeks of FMLA leave from August 2012 to November 2012.
Prior to her leave, Hicks’ performance evaluations had been positive. Immediately upon her return, however, she was written up. Hicks’ work environment changed too. Hicks’ supervisor called Hicks a bitch and said she would find a way to get Hicks out of the Department. The supervisor also referred to Hicks as a “stupid c***.” Hicks was soon reassigned to the patrol division. As a result, Hicks lost her vehicle, no longer had weekends off, received less pay, and was assigned different job duties. Hicks was also required to wear a ballistic vest in the new role.
After the reassignment, Hicks’ doctor recommended that she be given a different posting because the vest was restrictive and could cause breast infections. The Chief did not believe the physician’s warning, however. When Hicks returned from leave for postpartum depression, she requested a desk job because of the vest and asked for breastfeeding breaks. The Chief responded that he “did not consider breastfeeding a condition that warranted alternative duty.” Instead, the Chief gave Hicks three options: (1) don’t wear the vest; (2) wear a specially fitted vest; or (3) have access to lactation rooms during her shift and Hicks could have priority to take two breastfeeding breaks per shift.
Hicks did not consider the “no vest” option to be an accommodation because her job was too dangerous without a vest. Similarly, Hicks thought a specially fitted vest would be ineffective because large gaps would be left, which would reduce the vest’s effectiveness. Hicks resigned in response to the Chief’s suggestions.
Hicks filed suit under the Pregnancy Discrimination Act and the FMLA. A jury found for Hicks and the City appealed. On September 7, 2017, the Eleventh Circuit affirmed. The court found that the comments regarding Hicks and the timing of the reassignment — eight days after she returned from FMLA leave — supported the inference of intentional discrimination. The jury had concluded that the Chief’s options “were so intolerable that a reasonable person would be forced to resign.” Thus, Hicks’ decision to quit was protected by the PDA. The appellate court concluded that an employer may be obligated to provide accommodations to breastfeeding employees if the employer provides the accommodations to similarly situated employees in non-breastfeeding situations. The Eleventh Circuit did not hold that employers must alter an employee’s job duties, however, pregnant employees and employees with pregnancy-related conditions must be treated the same as those who are not pregnant and/or do not have pregnancy related conditions. “Hicks was not asking for a special accommodation, or more than equal treatment — she was asking to be treated the same as ‘other persons not so affected but similar in their ability or inability to work’ as required by the PDA. . . . Hicks showed that other employees with temporary injuries were given ‘alternative duty,’ and she merely requested to be granted the same alternative duty.”