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 against discrimination.

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 employee.

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 job.