Can an employer require a pregnant employee to run 1.5 miles as part of a bi-annual fitness qualification program? Sure. But what if the employer refuses to excuse the pregnant employee and admits the denial is because she’s pregnant? Or what if the employer refuses to excuse the pregnant employee while excusing other employees with comparable levels of disability from a different source? Well, now we’re in unlawful discrimination territory. A federal district court’s recent ruling in Thomas v. Florida Parishes Juvenile Justice Commission reinforces the contours of the Pregnancy Discrimination Act of 1978 and the Supreme Court’s interpretation of it.
Running on Empty
Brandi Thomas had worked as an officer in a juvenile detention center for almost a decade when she became pregnant. On April 1, 2016, she informed the human resources director, Norleidy Hernandez, at Florida Parishes Juvenile Justice Commission (“the Commission”), which operates the facility at which she works, of her pregnancy. The detention center, which is run much like an adult prison, is staffed by Juvenile Detention Staff (JDS) Officers, who must complete bi-annual physical fitness testing. The test includes push-ups, sit-ups, bench press, a flexibility test, and a 1.5 mile timed run—think the presidential fitness challenge for grown-ups.
Thomas was six weeks pregnant when she told Hernandez about her condition. Thomas asked to take her fitness test before the required date because it would only get harder to complete later in pregnancy. That same afternoon, she successfully completed every component but the run, which she was told to attempt on the regularly scheduled date of April 21, 2016. Thomas attempted the run on that day, but did not complete it within the requisite number of minutes. Shortly afterwards, she felt ill and went to the emergency room; she was diagnosed with a placental bleed and told to spend a few days in bed. (Thomas was right to request an accommodation given her doctor’s orders—and her employer was wrong to deny it. But running is not inherently incompatible with pregnancy, nor prohibited for most pregnant women. In fact, the largest ever study of running showed that running during pregnancy is generally safe.)
After that incident, Thomas was placed on light duty at work for two weeks, and her doctor submitted a note stating that she was limited to “light activity” due to pregnancy complications. Her employer did not actually have any light duty work for her to do, however, so she had to use personal leave time instead. Her run at been rescheduled for a day during that leave period. She returned to work with another doctor’s note advising that she could work without restriction. Her supervisor, Ashton Magee, notified her that she would have to again attempt the 1.5-mile run. Now in her second trimester, Thomas gave McGee another note from her doctor, which explained that she was “medically advised to avoid extended running” because of a “high risk pregnancy.” Magee told Thomas that she would have to perform the run anyway—and told her that she should not even turn in the note to human resources. According to Magee, the detention center had a “custom” of not excusing pregnant women from the run even with a doctor’s note, even though it would excuse employees with physical limitations due to other causes.
Thomas again attempted the run. She did not finish in the time required and again ended up in the emergency, where she was treated for a back injury. A few weeks later, Thomas was given a light-duty assignment, which she accepted and performed until being put on bed rest for her third trimester. She had her baby in November 2016 and returned to the facility the following September; she continues to work there.
Thomas’s Pregnancy Discrimination Claim
Thomas filed a lawsuit in which she alleged that the Commission engaged in pregnancy discrimination in violation of Title VII, a federal anti-discrimination law, and Louisiana law. The crux of her claim is that it was discriminatory to force her to attempt the timed run while pregnant, with a doctor’s note documenting her pregnancy-related disability, when the Commission had excused other employees with physical limitations from the same requirement. To understand why that comparison is so important, we need to consider the contours of pregnancy discrimination law.
The heart of federal law on this topic is the Pregnancy Discrimination Act (PDA) of 1978. This law was passed in direct response to a bizarre Supreme Court ruling in General Electric v. Gilbert, in which it held that pregnancy discrimination was not a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The opinion tracked an equally strange ruling from two years earlier, in which the Court had said that pregnancy discrimination was not a form of sex discrimination under the Equal Protection Clause. In both opinions, the Court seemed completely unmoved by the reality that pregnancy only happens to women and that many of our stereotypes, biases, and attitudes about pregnant workers are inextricably intertwined with our stereotypes, biases, and attitudes about working women more generally. The Court, instead, gave public and private employers a license to single out pregnant women for adverse treatment, during a time when workers more generally were experiencing an expansion in wages and benefits.
Congress took direct aim at the Supreme Court’s views of pregnancy and gender—as well as at the Gilbert opinion more specifically. The first clause of the PDA amends Title VII to provide that discrimination on the basis of “pregnancy, childbirth, or related medical conditions” is unlawful as a form of sex discrimination under Title VII—expressly repudiating both the Court’s reasoning and its holding in Gilbert. The second clause goes further and directs that pregnant women have the right to be treated the same as others who are “similar in their ability or inability to work,” but “not so affected” by pregnancy. (Louisiana law, which Thomas also cited in her lawsuit, is more or less the same as federal law with respect to pregnancy discrimination.)
The Meaning of the PDA’s Second Clause and Young v. UPS
In a nutshell, the PDA’s two clauses capture two basic rights—the right not to be singled out for adverse treatment because of pregnancy (clause 1) and the right to be treated at least as well as other temporarily disabled employees (clause 2). Neither clause gives pregnant women any absolute right to accommodation of pregnancy-related disability, which is why the Commission’s treatment of non-pregnant workers with limitations is the crux of Thomas’s claim.
The meaning of the second clause of the PDA has been hard for courts to pin down. One recurring question was about the appropriate comparison group. Many employers, for example, had policies that permitted accommodations for workers injured on the job but not for workers with disability from any other cause. Women with pregnancy-related disability always fell in the latter group—and were thus denied accommodations like light-duty assignments, even though the employer was making those accommodations available to workers with comparable levels of disability. Employers defended such policies as “pregnancy-blind”—and a surprising number of federal courts accepted that as a sufficient defense. What these employers and courts missed was that this approach flatly undermined Congress’s intent to give pregnant workers access to the same types of accommodations and benefits available to others. Congress wanted employers to stop treatment pregnancy as “special,” a stance that typically led to pregnant workers’ being treated worse rather than better than others.
In 2015, the Supreme Court decided Young v. UPS, in which it resolved some questions about the proper interpretation of the second clause. Peggy Young had argued that UPS’s policy was discriminatory because it permitted light-duty accommodations to some workers—potentially many—who had similar types of work restrictions, but did not allow the same accommodation for her. UPS, on the other hand, argued that no policy could violate the PDA if it was pregnancy-neutral—that is, if it did not single out pregnancy as the only condition that did not merit some particular accommodation. In the majority opinion, Justice Breyer rejected the position of each party and settled on a rule somewhere in the middle that seemed to honor the text and spirit of the PDA.
The Court’s approach to the second clause makes use of the so-called McDonnell-Douglas test, which is used to smoke out discriminatory intent by employers accused of unlawful disparate treatment. As adapted for the pregnancy accommodation context, a pregnant worker can establish a prima facie case of pregnancy discrimination simply by showing that “she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’” Upon establishment of the prima facie case, the burden of production then shifts to the employer, who must articulate a legitimate, non-discriminatory reason for its differential treatment. Here, the Court interposes another rule to protect pregnancy discrimination plaintiffs. “[C]onsistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.” Finally, if the employer has articulated a sufficient reason, the plaintiff has the opportunity nonetheless to reach a jury by “providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.”
The District Court’s Analysis of Thomas’s Claim
In Thomas’s case, the Commission moved for summary judgment on her pregnancy discrimination claim. It argued that there were no undisputed facts relevant to her claim and that the employer’s conduct did not constitute pregnancy discrimination. The district court disagreed, denying summary judgment and sending the case for trial. It did so based on two different methods—with direct evidence of pregnancy discrimination or through the McDonnell Douglas/Young proof structure.
First, the court considered whether Thomas had presented direct evidence of pregnancy discrimination. (It’s unclear, given the holding of Desert Palace v. Costa, discussed here, why the court thought such evidence was necessary, though it would certainly suffice to prove that pregnancy was “a motivating factor” in the decision.) Her supervisor, Ashton Magee, submitted an affidavit confirming Thomas’s testimony—that Magee had told her not to bother submitting a doctor’s note because the facility “did not allow pregnant employees from being excused from the Physical Fitness Test – 1.5 mile run even with a doctor’s note” but “would let other non-pregnant employees with physical limitations be excused from the 1.5 mile run with an appropriate doctor’s note.” This, in the court’s view, was direct evidence (requiring no inferences to reach the ultimate conclusion) that Thomas was refused an accommodation because of pregnancy. Direct evidence, according to this court, exists when a comment relates to the protected characteristic (pregnancy), was proximate in time to the challenged decision (denial of accommodation), was made by the individual with authority over the decision (Magee), and relates to the challenged decision (denial of accommodation because of pregnancy). In the face of direct evidence, the employer can avoid damages only by proving that the decision would have been made regardless of the “forbidden factor.”
Second, the court considered whether Thomas could also prove pregnancy discrimination through the pretext structure adapted for pregnancy in Young. There, too, she would have no trouble satisfying the threshold showing—that she was pregnant, sought an accommodation, and was denied an accommodation that was given to similarly situated workers. The employer argued that she still could not prevail at trial because she suffered no adverse employment action. But the court held that an adverse action is not required to prove actionable pregnancy discrimination under the Second Clause of the PDA. Rather, the denial of the accommodation is the disparate treatment. Because she established a prima facie case, the court held that summary judgment for the employer was not appropriate. At trial, the employer will have the opportunity to prove it had a legitimate, non-discriminatory reason for the denial (within the constraints set forth in the Young decision), and Thomas will have the opportunity to prove that any reason proffered by the employer is pretextual—masking discrimination (again, within the constraints in Young). The evidence of pregnancy discrimination in this case is strong—certainly strong enough to warrant proceeding with a trial on the merits.
The court here was correct to deny the employer’s motion for summary judgment. The available facts suggest a strong case of pregnancy discrimination—with no hint of an explanation why. The Young decision has been helpful in forcing employers to account for their random denials of accommodations to pregnant workers. Why did this employer seem to have a policy that routinely let some restricted workers defer their fitness tests while routinely denying the same accommodation to pregnant workers? That is a question they should have to answer at trial. Brandi Thomas should win this fight because she had a medically documented reason to avoid running while pregnant—and it seems very likely that the employer would have granted her request had she had the same restriction from another cause. That’s the very essence of pregnancy discrimination.