Pregnancy has been in the news a lot this year, mostly due to the Supreme Court’s June 24, 2022 decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022), which overturned Roe v. Wade, 410 U.S. 113 (1973). The Dobbs decision impacts employers, but I will save that discussion for another day.
Today we will revisit the Pregnancy Discrimination Act (PDA) of 1978, and a recent decision from the Seventh Circuit that held Walmart did not violate the law with a temporary light duty policy that only covered workers injured on the job even though, as a result, it excluded pregnant employees. EEOC v. Wal-Mart Stores E., L.P., 2022 U.S. App. LEXIS 22685 (7th Cir. Aug. 16, 2022).
First a bit of history. The PDA was an amendment to Title VII’s definition of “sex” as a category protected from discrimination. It was enacted in direct response to the Supreme Court’s decision in General Electric Company v. Gilbert, 429 U.S. 125 (1976), that held pregnancy discrimination was not prohibited by Title VII.
The PDA provides, among other things, that “sex” includes “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). There have been few cases from the Supreme Court over the years interpreting the scope of the law, but among them was California Federal S. & L. Assn. v. Guerra, 479 U.S. 272 (1987). Guerra held that a state may require an employer provide greater benefits to pregnant employees. In other words, the PDA is a floor, not a ceiling, for protection.
In 2015, the Court decided Young v. UPS, 575 U.S. 206 (2015), a case that came out of Maryland. In Young, a pregnant UPS driver asked for light duty due to her pregnancy. UPS responded that it made light duty available only to employees who were on workers’ compensation due to a workplace illness or injury. And – as I told my law students when I would teach the case – if the pregnancy resulted from a workplace interaction, that was a whole different area of the law we’d need to discuss.
In its 6–3 decision, the Court held that UPS’s actions may have violated the PDA. In the majority opinion, Justice Breyer stated that the key inquiry was “whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination.” He suggested a balancing test for assessing the question:
“[a] worker making a claim that her company intentionally treated her differently due to her pregnancy must show that she sought an accommodation, her company refused and then granted accommodations to others suffering from similar restrictions. The company, in turn, can try to show that its reasons were legitimate — but not because it is more expensive or less convenient to add pregnant women to the categories of workers who are accommodated.”
That brings us to Walmart’s experience in the Seventh Circuit. The EEOC sued the company on behalf of female employees at a Walmart distribution center in Wisconsin.
Like UPS in Young, Walmart offered temporary light duty to employees who were injured on the job. Walmart required pregnant workers with lifting or other physical restrictions related to pregnancy to go on leave. Some pregnant employees had to make difficult choices between continuing to work at a job that was becoming physically too demanding, or even dangerous, and going on unpaid leave for several months.
Walmart won in the district court, and the EEOC appealed. The Seventh Circuit affirmed. The appellate court looked at the context of the Walmart case in the light of Young’s balancing test. The EEOC argued that Young required Walmart “to do more than simply articulate the reason why it provided a benefit to non-pregnant employees. The employer must also articulate the reasons why it excluded pregnant employees from the benefit.”
The Seventh Circuit disagreed. Looking at Young’s balancing test much like the general assessment of disparate treatment claims under the McDonnell Douglas three-part test, the court held that it was the EEOC’s burden to “provid[e] sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.”
The EEOC, said the court, did not present other evidence suggesting that workers similar to pregnant women in their ability or inability to work were accommodated under any employer policies barred to pregnant women, including the [light duty] Policy, other than the occupationally injured workers themselves. The court also upheld sanctions against the Commission for its behavior in discovery.
The Seventh Circuit’s decision conflicts with the Second Circuit’s ruling in Legg v. Ulster Cty., 820 F.3d 67 (2d Cir. 2016), which it distinguished in part that the employer in Legg offered inconsistent and confusing rationales for its policy. These decisions do create a circuit split that could result in interest from the Supreme Court on the proper interpretation of Young, but I doubt we will see a case on the subject argued before the Court anytime soon.
What’s the takeaway here? It seems that Walmart got out of a possible jam here in part because of the EEOC’s less than stellar performance in the litigation below. Employers are strongly encouraged not to treat light duty work for pregnant employees differently from workers’ compensation light duty. Importantly, note that many states (Maryland is one) have passed reasonable accommodation laws for pregnant workers.
And, apropos of nothing perhaps (but I speak from personal experience here), when you talk about your own family, resist the urge to say “we were pregnant” unless you want a skeptical look from your spouse and a retort that goes something like “Really? I didn’t see you deliver a baby.”