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Jan 13, 2014

By Patricia F. Weisberg

The Sixth Circuit U.S. Court of Appeals in Cincinnati, which has jurisdiction over Ohio, Michigan, Kentucky and Tennessee, recently issued an opinion finding that an employer may have discriminated against a pregnant employee who had a 50-pound lifting restriction when it refused to allow her to continue to work in a light duty job during her pregnancy.

The case, Latowski v. Northwoods Nursing Center, involved a certified nursing assistant (CNA) who was employed by a nursing home in Michigan. After the employee became pregnant, her doctor imposed a 50-pound lifting restriction.

When the employee reported for her scheduled shift one evening, she was escorted off the premises and advised she could apply for Family and Medical Leave. The employee, however, refused to use her Family and Medical Leave Act (FMLA) leave, preferring to save it until after the birth of her child.

A disparity in treatment

In response, the employer treated her as if she had “resigned” explaining that it could not accommodate a non-work-related restriction as part of its policy that provided light duty for employees who had work-related injuries.

In reversing the lower court’s decision granting summary judgment to the employer, the Sixth Circuit found that the employee had presented evidence that the employer treated other certified nursing assistants with similar lifting restrictions more favorably by assigning them to “light duty.” The Court noted that, although these employees differed because they had work-related medical conditions, they were still similarly situated in their ability to work because they were placed under similar lifting restrictions of up to 50 pounds.

The Court also noted that supervisors allegedly made statements regarding the employee’s pregnancy and her ability to work. The Court, therefore, found that this employee had presented sufficient evidence to establish a prima facie case of pregnancy discrimination and therefore she could present her case to a jury.

The Court, however, did affirm the dismissal of the employee’s claims under the FMLA and Americans With Disabilities Act (ADA).

Interestingly, the Court acknowledged that under ordinary circumstances, employees who were restricted because of work-related injuries would be inappropriate for comparison under federal discrimination law because they are not similarly situated in all respects. The Court noted, however, that the Pregnancy Discrimination Act (PDA) altered the analysis for pregnancy discrimination claims.

Ramifications for employers

The Court held that while federal law “generally requires that a plaintiff demonstrate that an employee who receives more favorable treatment be similarly situated in all respects, the PDA requires only that the employee be similar in his or her ability or inability to work.”

This decision has ramifications for any employer who has a light duty policy for employees who have sustained work-related injuries. Basically, what the Court appears to be saying is that it may find a violation of the PDA if an employer discriminates in its treatment of an employee with a work-related restriction and a pregnant employee who has a similar restriction.

The Court says that, as long as the two are similar in their ability or inability to work, they are similarly situated for proof purposes under the PDA. The Court did not, however, go so far as to rule that light duty policies for work-related conditions are, per se, unlawful.

While this case involved unique facts (i.e. the employee argued she could perform the essential functions of her job and she alleged her supervisors made pregnancy related statements), employers should tread carefully when implementing light duty policies for work-related injuries only. As this case demonstrates, the potential for liability under the PDA and Americans with Disabilities Amendments Act (ADAAA) is great.

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