The Eleventh Circuit has ruled, consistent with the Fifth Circuit, that reserving a light duty program exclusively for employees suffering from work-related injuries does not violate the Pregnancy Discrimination Act.
In Spivey v Beverly Enterprises, Inc (November 30, 1999) a nurse's assistant employed by a rehabilitation center whose primary duties included lifting and repositioning patients and providing general patient care sought light duty work after presenting a doctor's note stating she could not lift more than 25 pounds due to pregnancy. The employer denied her request because its light duty program was reserved exclusively for employees who had sustained work-related injuries. The employee was discharged because she was unable to perform her duties, but was later rehired following childbirth. She then sued her employer under the Pregnancy Discrimination Act to recover benefits and seniority lost as a result of her discharge. The trial court granted the employer's request for dismissal and the employee appealed.
The Eleventh Circuit reviewed this pregnancy discrimination claim under both disparate treatment and disparate impact theories. To establish disparate treatment, an employee must present either direct evidence of discrimination or circumstantial evidence, i.e., that she: (1) was a member of a protected class; (2) was qualified to perform the job; (3) experienced adverse treatment; and (4) was treated differently than persons outside the protected class.
In this case, the employee was a member of a protected class, i.e., pregnant women, and suffered adverse treatment, i.e., discharge, but could not show disparate treatment for two reasons: (1) she was not qualified for her job because of her lifting restriction; and (2) she was not treated differently than non-pregnant women since persons temporarily disabled due to conditions other than pregnancy also were excluded from the light duty program.
To establish disparate impact, the employee needed to show that the employer's policy of restricting its light duty program had a statistically disproportionate impact on pregnant women. The employee failed to present any statistical evidence and the court affirmed dismissal of this claim. The court observed that its ruling was consistent with the Fifth Circuit's ruling in Urbano v Continental Airlines, Inc (1998), which the U.S. Supreme Court declined to review.
The federal Pregnancy Discrimination Act in 1978 amended the scope of Title VII's prohibition of sex discrimination to include pregnancy, childbirth and related medical conditions. Like Title VII, Michigan's Elliott-Larsen Civil Rights Act was amended in 1978 to prohibit discrimination on the basis of pregnancy, childbirth and related medical conditions. The Michigan Supreme Court was presented with a similar question regarding whether the unavailability of light duty for pregnant employees constituted pregnancy discrimination under state law in Koester v City of Novi (1998). In Koester the employer had a no light duty policy. Ms. Koester claimed the policy adversely affected pregnant employees, but failed to show that the policy affected women more severely than men. As a result, the Michigan Supreme Court affirmed the dismissal of Ms. Koester's disparate impact claim concerning the absence of a light duty policy.