The Sixth Circuit recently held that a certified nursing assistant (CNA) should be permitted to take her Pregnancy Discrimination Act claim to trial even though the employer terminated her based on its facially neutral policy that provided light duty work only for employees who were injured on the job.
Executive Summary: The Sixth Circuit recently held that a certified nursing assistant (CNA) should be permitted to take her Pregnancy Discrimination Act claim to trial even though the employer terminated her based on its facially neutral policy that provided light duty work only for employees who were injured on the job. The court held that a jury should determine whether the policy, when considered in conjunction with discriminatory remarks made by managers, was pretext for discrimination. See Latowski v. Northwoods Nursing Ctr. (6th Cir. December 23, 2013).
In this case, Jennifer Latowski, a CNA, advised her employer that due to her pregnancy she had been placed on a fifty-pound lifting restriction. The employer terminated her employment based on its facility neutral light duty policy – that light duty would only be provided to employees with work-related injuries. The CNA filed suit alleging disability discrimination and pregnancy discrimination. The lower court dismissed her claims but the Sixth Circuit held that she may, in fact, have a pregnancy discrimination claim, although no disability claim.
In a departure from the traditional understanding that an employer may lawfully limit light duty work to those employees injured on the job, the Sixth Circuit found that the employer treated other CNAs with similar lifting restrictions more favorably by assigning them to light duty, noting "Although 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 fifty pounds." The court noted that several statements made by employer's administrators revealed discriminatory animus against pregnant women, including that Latowski "wouldn't want to lose [her] baby," the company "would be liable if something happened to her baby and we had allowed her to work against her doctor's advice," and her "belly would be in the way." The court found that the comments were made by either the decision maker or a high-level manager and were made directly in relation to Latowski's termination.
In light of these statements, the court found that a jury should decide whether the employer's business decision to implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace injuries, even if those restrictions did not limit the employees' ability to competently perform their jobs, was a pretext for discrimination. In a footnote, the Sixth Circuit explained, "Under the ordinary Title VII analysis, employees who were restricted because of work-related injuries would be inappropriate comparators because they are not similarly situated in all respects. However, . . . .the [Pregnancy Discrimination Act] requires only that the employee be similar in his or her ability or inability to work."
It appears that the key factors swaying the Sixth Circuit included the fact that Latowski passed "essential functions" tests after her pregnancy arose, but before the fifty-pound restriction was in place, yet she was still terminated, and the managers' stereotypical statements about Latowski's ability to perform her job while pregnant. Had these two facts been different, the outcome may have been different.
Employers' Bottom Line: While employers traditionally have been permitted to limit light duty work to those employees injured on the job, employers are cautioned not to blindly rely on their facially neutral policies when confronted with pregnancy-related restrictions. Here it appears that there was some workplace hostility that undercut the application of an otherwise neutral policy.
If you have any questions regarding this Alert or other labor or employment related issues, please contact the authors,
Louis Britt,
lbritt@fordharrison.com, a partner in our
Memphis and
Nashville offices, or
Katie Parham,
kparham@fordharrison.com, an associate in our
Memphis office. You may also contact the FordHarrison attorney with whom you usually work.