In an unpublished opinion, the U.S. District Court of Appeals for the 6th Circuit reversed a lower court’s dismissal of a pregnancy discrimination claim, finding that an employer’s “no accommodation for non-work-related injuries” raised an issue of pregnancy discrimination for a jury. Latowski v. Northwoods Nursing Center, 6th Cir., No. 12-2408, December 23, 2013.
Jennifer Latowski was employed as a certified nursing assist (“CNA”) with North Woods Nursing Center in Farwell, Michigan, beginning in July 2007. In that role, she assisted nursing home residents in their daily activities, including showering, dressing, eating, and ambulating. On four occasions during her employment at North Woods, Latowski passed “essential functions” tests, and was viewed as a competent employee.
On September 26, 2008, North Woods became aware that Latowski was pregnant, and asked Latowski to obtain a doctor’s note saying that she had no employment restrictions. The request was made pursuant to a North Woods policy that the company only would accommodate restrictions resulting from work-related incidents. Latowski’s doctor provided a note to North Woods, restricting Latowski from lifting over 50 pounds. When Latowski subsequently attempted to return to work, she was informed that she had “resigned,” and was escorted from the facility. Comments allegedly made by North Woods management regarding Latowski’s pregnancy and restrictions include statements regarding the fact that Latowski’s “belly would be in the way” of her work, and that North Woods didn’t want to be liable for any harm that may come to Latowski’s unborn child if Latowski continued to work.
Latowski filed an EEOC charge and, ultimately, a federal court lawsuit, alleging violation of the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). A federal district court granted summary judgment to North Woods on all claims, reasoning that North Wood’s policy was “pregnancy blind” and that there was no evidence that North Woods “harbored discriminatory animus towards [Latowski’s] pregnancy.”
On appeal to the Sixth Circuit, Latowski conceded that North Woods accommodation policy was facially nondiscriminatory, but argued that North Woods’ imposition of the policy to Latowski’s condition – in spite of the fact that her pregnancy did not negatively affect her ability to pass the essential functions test required for her to do her job – was discriminatory. The Sixth Circuit agreed, reversing the dismissal of the PDA claim. (The Court did, however, uphold the lower court’s dismissal of the ADA and FMLA claims for other reasons.)
Along with specific mention of the comments made by management which, according to the Court, raised a genuine issue of fact regarding whether those comments played a role in the decision to terminate Latowski’s employment, the opinion in this case includes a footnote that is worthy of attention. In that note, the Court differentiates between the analysis of typical Title VII claims and the analysis of a claim under the PDA, pointing out that “While Title VII generally requires that a plaintiff demonstrate that the employee who received 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.”
Based on that analysis, Latowski was able to show that North Woods treated non-pregnant CNAs with similar lifting restrictions (and therefore, similar ability/inability to work as Latowski’s) more favorably by allowing them to work light duty jobs, while precluding her from doing so.
This analysis raises a critical point for employers who have light duty policies that are restricted to employees with work-related injuries. It does not change the fact that an employer can have a light duty policy that restricts individuals with non-work-related injuries from light duty accommodation. However, what it does do, in essence, is instruct employers that pregnancy cannot be viewed as a non-work-related injury if, in fact, the pregnant employee is similarly restricted from working as is a non-pregnant employee with a work-related injury.