As many in the United States struggle with unemployment, layoffs, furloughs, pay cuts, and other adverse effects of the COVID-19 pandemic, pregnant women struggle just to be treated just like everyone else. In a recent ruling, Durham v. Rural/Metro Corp., the U.S. Court of Appeals for the Eleventh Circuit protected the rights of a pregnant worker who was wrongfully denied a light-duty assignment. Obviously important to the individual plaintiff, rulings like this one are also significant to the more general cause of workplace equity. Some employers have been slow to heed mandates from Congress and the Supreme Court about the need to give pregnant women the same accommodations that are available to other workers, and courts need to toe the line.
A Reasonable Request, an Unreasonable Response
Kimberlie Durham worked full-time as an emergency medical technician (EMT) for Rural/Metro Corporation. Her job required her to regularly lift 100 pounds—lifting stretchers, moving patients to and from the stretcher, using and restocking equipment—but when she became pregnant, her doctor advised her to avoid lifting more than 50 pounds. Durham asked her employer for an accommodation that would permit her to continue working despite the lifting restrictions. Specifically, she requested temporary light-duty work as an EMT or a temporary reassignment to a dispatcher position. The company had provided such accommodations to others in the past with a medical condition that impaired their ability to lift heavy objects. But Rural nonetheless denied Durham’s request, citing a policy of granting light-duty assignments only to employees who were injured on the job.
Durham had made her request for an accommodation to Mike Crowell, the general manager for the company’s operations in her city. Crowell her she could not continue working on the truck—and also that she was not eligible for any temporary reassignment. Under the company’s light-duty policy, workers injured on the job were entitled to have a special temporary position created for them—to keep them busy until they were restored to full capacity. But the company refused to do this for Durham. It also refused to give her a temporary position as a dispatcher, even though she had seen listings on the job board at work for open dispatch positions. Crowell checked with the human resources offices at Rural, which confirmed that she was not eligible for anything other than unpaid personal leave. In addition to being unpaid, such leave was limited to 90 days with one possible extension that was not guaranteed, did not come with a promise of job restoration, and did not permit the employee to work at any other job while on leave.
Faced with no good options, Durham sought to continue working in her regular job. But Rural refused to permit her to work given the medical restrictions she had told them about. She was dropped from the schedule and filed a pregnancy discrimination complaint with the Equal Employment Opportunity Commission.
Accommodation Rights Available to Pregnant Workers Under Federal Law
The Pregnancy Discrimination Act (PDA) of 1978 is the main source of protection for pregnant workers in the United States. It prohibits employers with at least fifteen employees from singling out pregnant workers for adverse treatment, just as they are not permitted to discriminate against workers on the basis of other protected characteristics like race, sex, national origin, or religion. But the PDA goes further. In a second clause, it mandates that employers must treat those affected by “pregnancy, childbirth, or related medical conditions” at least as well as comparably disabled workers when doling out benefits such as paid leave, seniority, and light-duty. This clause, which creates a right of comparative accommodation, has always been a source of litigation, as many federal courts resisted giving it its due.
In 2015, the Supreme Court issued an opinion in Young v. United Parcel Service, in which it set forth the proper test for determining whether the denial of an accommodation to a pregnant worker violates the PDA. In that case, Peggy Young sought a routine workplace accommodation from United Parcel Service (UPS) that was made available to many other workers with similar restrictions. She had a pregnancy-related lifting restriction that did not interfere with her ability to do her usual tasks, but was inconsistent with her job description. UPS had a formal policy that made light-duty assignments available to workers who were injured on the job, who had lost their commercial driver’s licenses for any reason, or who were disabled within the meaning of the Americans with Disabilities Act. Practically speaking, pregnant women were the main group who would never qualify for light-duty assignments under this policy.
Young sued under the PDA. She argued that she was entitled accommodations that were available to other workers with comparable restrictions, regardless of their source. UPS argued that it could define eligibility for accommodations in any way it chose, as long the line was not pregnancy/non-pregnancy. The Supreme Court rejected both interpretations of the PDA’s second clause.
In the Young ruling (which is analyzed in greater detail here and here), the Court adapted the McDonnell-Douglas framework, which provides a basis for smoking out discriminatory intent when the employer denies it, for pregnancy accommodation claims. Under Young, a plaintiff who has been denied an accommodation warranted by the physical effects of her pregnancy must first demonstrate that she was treated differently from someone similarly situated but outside the protected class. A plaintiff 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.’”
After her 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. But the Court ruled out some of the most likely reasons, specifying that the “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, the plaintiff then has the opportunity 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.”
This ruling made clear that the PDA’s second clause provides protections independent of the core ban on pregnancy discrimination. It also made clear that the many common light-duty policies were not going to pass legal muster—and that employers should be required to account for their decisions when they have the effect of excluding pregnant workers from otherwise available accommodations.
The Rulings in Durham v. Rural/Metro: The Supreme Court Meant What It Said
The district court granted summary judgment to Rural. It did so in spite of the Young ruling and despite evidence revealed during discovery that the company had granted light-duty assignments to other workers with non-work-related injuries—and yet had withheld them from Durham. Nonetheless, the court concluded that Durham had failed to establish a prima facie case of discrimination under the PDA. It reasoned that nonpregnant EMTs who could not lift the required 100 pounds were not “similar in their ability or inability to work” But in doing so it made one of the very mistakes Young instructed courts to avoid—it used Rural’s own light-duty policy to block proof of the prima facie case.
The Eleventh Circuit reversed the lower court, finding that Durham had indeed made out a prima facie case pursuant to the first step of the “new, modified” McDonnell Douglas burden-shifting framework for analyzing pregnancy accommodation claims brought using indirect evidence.
Applying this framework, the court first considered Durham’s prima facie case and found no real dispute as to the first three elements: Durham was pregnant, she had asked for light duty or dispatcher work, and Rural had declined her request. The fourth element, whether Durham had presented evidence that Rural accommodated others who were not pregnant but who were similar to Durham in their ability or inability to work, required more attention from the court.
The Eleventh Circuit began with a reminder—quoting from its recent en banc ruling in Lewis v. City of Union City, Ga.—that in determining whether the plaintiff has presented evidence that the employer accommodated others who were similar in their ability or inability to work, similarity is determined only by “‘a single criterion—one’s ability to do the job.’” The focus on this single criterion, which echoes the language of the PDA and the Young opinion, eliminates the plaintiff’s traditional need in a Title VII case to find a comparator who is “similarly situated.”
Over the last several decades, courts have unduly narrowed the pool of possible comparators for discrimination plaintiffs, requiring the plaintiff to find a near twin who occupies a similar position with similar duties and a similar work history. This doctrinal shift has resulted in the dismissal of many seemingly meritorious claims. The Eleventh Circuit had noted concern about this shift in Lewis, in which it sought to broaden the standard in all Title VII cases. The Durham case gave it the opportunity to make clear, as the Supreme Court did in Young, that the traditional standard has no place in a pregnancy accommodation claim.
Applying the “similar ability to work” standard to Durham’s case, the Eleventh Circuit concluded that a person who cannot lift more than 10 or 20 pounds would be an appropriate comparator. Neither could meet the lifting requirement for their jobs. For this reason, the court ruled that Durham and her colleagues who were injured on the job were similar in their ability to work.
The appellate court then turned to whether Durham had presented sufficient evidence that Rural had accommodated others who were similar in their ability to work. She offered two types of evidence. First, she identified four individuals who were not pregnant and who had been accommodated under Rural’s light-duty policy as a result of on-the-job injuries. This evidence showed that two had lifting restrictions, one was limited to seated work, and one had to wear a knee brace. The court did not rule any of these to be too dissimilar as comparators.
The second type of evidence of accommodation was an employer policy in the Employee Handbook that stated that employees who were unable to perform some of their job duties due to a medical condition would be accommodated on a case-by-case basis. In what is perhaps the most important part of the decision for future plaintiffs, the court found the policy—which was not limited to on-the-job injuries—to be sufficient evidence. It stated that the Handbook policy “left open the possibility that Rural similarly accommodated some of those disabled off the job, including those with resulting lifting restrictions,” and found that Durham’s evidence had satisfied the fourth prong of the prima facie case. The import of this finding is that a plaintiff can satisfy the fourth prong of showing that others were accommodated by providing evidence of policies that the employer accommodates others, such as those who have disabilities, even if the plaintiff cannot point to specific individuals who have actually received accommodations in the past.
This aspect of the holding aligns with the Young decision, which referenced employee policies among the pieces of evidence proffered by the plaintiff, and also with a recent decision from the U.S. Court of Appeals for the Second Circuit in Legg v. Ulster County (2016). In Legg, the Second Circuit concluded that a light-duty policy by itself satisfied the fourth prong. This makes sense as the employer’s policy reflects its decision about how broadly to grant accommodations; a pregnant plaintiff should not have fewer rights because none of her co-workers have had to take advantage of the policy yet.
The Eleventh Circuit’s Mistake
In one important respect, the Eleventh Circuit faltered in its application of Young. In the second step of the pretext test—both for discrimination claims generally and pregnancy accommodation claims—the employer has to proffer a legitimate, non-discriminatory reason for its action. In Durham, the district court never reached this step because it ruled that the plaintiff had not met her prima facie case. Nonetheless, the Eleventh Circuit offered dicta on the proof sufficient to meet this burden.
Rural had proffered two reasons for not accommodating Durham: its light duty policy applied to only employees who had been injured on the job, and it did not have any dispatch positions available at the time Durham requested accommodation. The Eleventh Circuit seemed to accept these reasons without analysis as sufficient to satisfy the employer’s burden. Prior to Young, that approach might have been fine, as employers needed to do no more than articulate their reasons. After Young, however, the employer cannot rely on reasons of cost or convenience—even if “non-discriminatory.” Young rejects the legitimacy of such reasons, as it is virtually always cheaper and easier to deny accommodations than to grant them.
Courts need to take care not to accept bare proffers of an employer’s nondiscriminatory reasons. They should reject any reason that is not supported by an explanation of how it exists apart from issues of cost and convenience. The Young Court crafted a test that will rarely be met by employers who do offer accommodations but deny them to pregnant workers. Thus, skepticism of employer reasons at this stage of the test is required. In Durham, the Eleventh Circuit’s failure to scrutinize Rural’s reasons ignored this aspect of the Young holding and rewarded Rural for its vagueness. At the very least, the Eleventh Circuit should have directed the district court on remand to reopen discovery on the issues of whether the light-duty policy was limited for the employer’s cost or convenience and whether it was only a matter of cost or convenience that kept Rural from making a dispatch position available (which it had apparently done for other employees on other occasions).
Because the Eleventh Circuit had accepted Rural’s reasons, its remand to the district court was only for consideration of the third step: whether Durham could show that Rural’s reasons were pretext for discrimination. It reiterated Young’s holding that Durham could do so by showing that Rural’s refusal to accommodate her imposed a significant burden on pregnant workers and that Rural’s reasons did not outweigh the burden. But it also correctly noted that this is only “one way” that Durham could show pretext—acknowledging, as other courts have held, that the traditional ways of showing pretext mentioned above remain viable after Young.
The Concurrence: An Erroneous Proposal
Judge Danny J. Boggs, a senior judge from the Sixth Circuit sitting by designation, filed a concurring opinion. He prefaced his concurrence by saying he wanted to discuss only what happens after the prima facie case is made, but in so doing made a facially appealing but quite mistaken suggestion that, if implemented, would nullify the central holding of Young.
Judge Boggs focused on the issue of an employer’s dissimilar treatment of pregnant employees and employees who are injured on the job. Young had found the on-the-job/off-the-job distinction to be immaterial; it ruled that what matters is the similarity of the two groups’ ability to work and not the source of their inability to work. Despite the clarity of the ruling, Judge Boggs suggested that it be limited to the prima facie case in the first step of the Young framework and resurrected in the second and third steps. Under his proposal, an employer could argue that it has not discriminated against a pregnant employee if it treated her the same as it treated employees injured off the job, i.e., the employer can argue it did not discriminate when not accommodating the pregnant employee if the employer’s policy or practice limits accommodation to on-the-job injuries.
Judge Boggs would instruct the district court to consider this issue at the second and third steps of the framework. The end result would be a per se rule that refusing to accommodate pregnant women is legal and nondiscriminatory as long as the employer has a policy that limits accommodation to on-the-job injuries and, presumably, as long as the employer applies the policy uniformly. In other words, Judge Boggs’s proposal would put pregnant employees in exactly the same position they were in before the Young decision, without any meaningful right to accommodation.
This outcome by itself is enough to require rejection of the proposal: the Young Court clearly held that employers must accommodate pregnant employees if it accommodated others who are similar in their ability to work, regardless of how their need for accommodation arose, subject to a very narrow limitation. The Young Court was presented with the exact type of policy Judge Boggs suggests might be valid—one that made accommodations available to those injured on the job, but not those injured off the job. It is not possible to square Judge Boggs’s concurrence with the holding in Young.
Conclusion
Although Durham does not break any new legal ground, the opinion represents a step forward for the rights of pregnant women. At a time when the entitlement to pregnancy accommodation under the Pregnancy Discrimination Act is being undermined by district courts that are having a hard time applying the dictates of Young, the Eleventh Circuit’s ruling that Young will be followed—at least with respect to the prima facie case—is important for a circuit that is not known for upholding the rights of pregnant employees. Until the federal government follows the lead of half the states to create more definite pregnancy accommodation rights with a Pregnant Workers Fairness Act, every forward step is significant.