Must An Employer Provide Light Duty for Pregnant Employees?
By Darryl McCallum
A frequent quandary in which employers find themselves involves how to deal
with an employee who announces that she is pregnant and seeks to be assigned “light
duty” during some or all of her pregnancy. Many employers have personnel
policies that provide for light duty only when a person suffers an on-the-job
injury. Since pregnancy would not qualify for light duty under such a policy,
what is an employer to do upon learning of an employee’s pregnancy?
Given the rise in pregnancy discrimination claims that have
been filed at the Equal Employment Opportunity Commission (EEOC) over the past
several years (up from 4,287 in fiscal year 2001 to 4,649 in fiscal year 2003),
it is likely that more and more claims will be brought by plaintiffs seeking
to challenge their employer’s light-duty policy under the Pregnancy Discrimination
Act. In addition, Maryland employers who employ 15 or more people are covered
by the Maryland Human Relations Law, which also protects pregnant employees
The basic principle behind pregnancy discrimination laws
is that women affected by pregnancy and related conditions must be treated
the same as similarly-situated applicants and employees based on their ability
or inability to work. Thus, if an employee is temporarily unable to perform
her job due to pregnancy, the employer must treat her the same as other similarly-situated,
temporarily-disabled employees. To the extent that an employer has a policy
that provides for modified duty or alternative assignments for temporarily-disabled
employees in general, it must allow the same accommodation for an employee
who is temporarily disabled due to pregnancy.
A policy that provides for modified duty or alternative assignments
only for employees who are injured on the job could be challenged by an employee
who becomes pregnant and is thereafter denied light duty. The employee may
attempt to establish her claim of discrimination by comparing herself to another
employee who was injured on the job and received light duty.
Thus far, most courts that have addressed this issue, including
the United States District Court for the District of Maryland, have rejected
attempts by pregnant women to compare themselves to employees injured on the
job for purposes of establishing a pregnancy discrimination claim. These courts
have reasoned that so long as an employer treats pregnant employees the same
as it treats other employees who are temporarily disabled due to non-work related
causes, the employer’s policy of not accommodating pregnant women is
permissible. Additionally, these courts have recognized the economic realities
that cause employers to treat employees injured on the job differently, since
employers will normally be obligated under workers’ compensation laws
to pay these employees regardless of whether they are working.
Also, in its Enforcement Guidance manual, the EEOC has noted
that preferential treatment of employees injured on the job is not necessarily
indicative of discrimination. In analyzing an employer’s obligations
under the Americans with Disabilities Act, the EEOC has acknowledged that an
employer may recognize a special obligation arising out of the employment relationship
to create a light-duty position for an employee when he or she has been injured
while performing work for the employer and as a consequence is unable to perform
his or her regular job duties. Such a policy, on its face, does not treat an
individual with a disability less favorably than an individual without a disability,
nor does it screen out an individual on the basis of disability.
In order to avoid liability for pregnancy discrimination,
employers should be consistent in the application of their light-duty policy.
An employer who allows light duty for some non-pregnant employees injured off-the-job
will have a difficult time if they attempt to deny light duty to a pregnant
In addition, employers should not make assumptions about
an employee’s ability to perform her job immediately upon learning of
her pregnancy. An employer will set itself up for a pregnancy discrimination
suit if it acts hastily to remove a pregnant employee from a job simply on
the assumption that her pregnancy will affect the employee’s ability
to perform the essential functions of her job. A better approach is to wait
for the employee to request an accommodation, and ask her to bring a note from
her physician stating what restrictions she is under due to her pregnancy.
Upon receiving such a note, the employer can compare the restrictions with
a list of the employee’s job duties in order to make an assessment as
to whether such restrictions will prevent the employee from performing her
Darryl McCallum is an associate with the law firm of Shawe Rosenthal LLP,
where he concentrates his practice on the defense of employers in discrimination
and other employment-related claims.