Nursing Home’s Limited Accommodations Deemed Unlawful Pregnancy Discrimination

The United States Court of Appeals for the Sixth Circuit recently held that a nursing home’s policy of accommodating only restrictions from work-related incidents could be pretext for pregnancy discrimination.  Latowski v. Northwoods Nursing Center, No. 12-2408 (6th Cir. Dec. 23, 2013).

Jennifer Latowski was employed as a certified nursing assistant (“CNA”) by Northwoods Nursing Center in Michigan.  Her doctor recommended a 50-pound lifting restriction during the term of her pregnancy.  When her doctor did not rescind the lifting restriction, Latowski was terminated.  The basis for the termination was the employer’s policy to accommodate only those restrictions resulting from work-related incidents.

Latowski filed a wrongful termination suit claiming pregnancy discrimination under the Pregnancy Discrimination Act, the ADA, the FMLA, and related state-law claims.  The United States District Court for the District of Ohio granted summary judgment to the employer on all claims.  The Sixth Circuit reversed.

The Sixth Circuit held that Latowski presented sufficient proof of a nexus between her pregnancy and her termination through proof “that Northwood treated other CNAs with similar lifting restrictions more favorably by assigning them to ‘light duty.’”  According to the court, “a reasonable jury “could easily conclude” the nursing home’s decision to “implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace injuries, even if those restrictions do not limit the employees’ ability to competently perform their jobs — is so lacking in merit as to be a pretext for discrimination.”  The court further observed that while “these employees differed from Latowski because their medical conditions were work-related, they were similarly situated in their ability to work because they were placed under lifting restrictions of up to 50 pounds.”  By so holding, the court followed 1996 precedent, Ensley-Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996), where it held that “the Pregnancy Discrimination Act requires only that the employee be similar in his or her ability or inability to work.”

In addition, the court also considered statements by nursing home administrators regarding their concerns that by continuing to work ,the nursing assistant would jeopardize her health and that of her child and that her “belly would be in the way.”  The court held that these comments raised the inference that the policy was pretext for discrimination against pregnant women.

While the pregnancy discrimination claims were remanded, summary judgment was upheld as to all of Latowski’s other claims.  The Sixth Circuit found no evidence that the employer regarded Latowski as disabled, and found that the FMLA claim was not ripe and could not be proven because Latowski did not request FMLA leave before her termination.

This case serves as yet another example of the importance of having counsel review employer’s policies and handbooks, especially as to accommodations and “light duty” work.  Specifically, as demonstrated by this case, as long as a pregnant and non-pregnant employee are similar in their ability or inability to work, they are similarly situated for proof purposes under the Pregnancy Discrimination Act.


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