In an unpublished opinion, the Sixth Circuit Court of Appeals recently sided with an employee in a pregnancy discrimination case. In Latowski v. Northwoods Nursing Center, No. 12-2408 (December 23, 2013), the court reversing the lower court’s dismissal of the claim, found that the employer’s “no accommodation for non-work-related injuries” policy raised a triable issue of discrimination for a jury’s determination.
Beginning in July 2007, Jennifer Latowski was employed as a certified nursing assistant with North Woods Nursing Center in Farwell, Michigan. In that role, she assisted nursing home residents in their daily activities, which included showering, dressing, eating, and ambulating. On four occasions during her employment at North Woods, Latowski passed “essential functions” tests and was viewed as a competent employee.
On September 26, 2008, North Woods became aware that Latowski was pregnant and asked Latowski to obtain a doctor’s note stating that she had no employment restrictions. The request was made pursuant to a North Woods policy, according to which the company only would accommodate restrictions resulting from work-related incidents. Latowski’s doctor provided a note to North Woods, restricting Latowski from lifting over 50 pounds. After receiving the note, North Woods informed Latowski that she had “resigned” and was escorted from the facility. Commenting on Latowski’s pregnancy and the accompanying restrictions placed on her work, the North Woods management allegedly stated that Latowski’s “belly would be in the way” of her work, and that North Woods didn’t want to be liable for any harm that might come to Latowski’s unborn child if Latowski continued to work.
Latowski filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) and, ultimately, a federal lawsuit, alleging that North Woods had violated the Pregnancy Discrimination Act (PDA), the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). A federal district court granted summary judgment to North Woods on all claims, reasoning that North Woods’s policy was “pregnancy blind” and that there was no evidence that North Woods “harbored discriminatory animus towards [Latowski’s] pregnancy.”
On appeal to the Sixth Circuit, Latowski conceded that North Woods’s accommodation policy was facially nondiscriminatory, but argued that North Woods’s application of the policy to Latowski’s condition—despite the fact that her pregnancy did not negatively affect her ability to pass the essential functions test required to do her job—was discriminatory. The Sixth Circuit agreed, reversing the dismissal of the PDA claim. (The court did, however, uphold the lower court’s dismissal of the ADA and FMLA claims for other reasons.)
According to the court, there was a genuine issue of fact regarding whether the comments made by management played a role in the decision to terminate Latowski’s employment. In addition, the court, in a footnote, differentiated between the analysis of typical Title VII claims and the analysis of a claim under the PDA, pointing out that “[w]hile Title VII generally requires that a plaintiff demonstrate that the employee who received more favorable treatment be similarly situated in all respects, the PDA requires only that the employee be similar in his or her ability or inability to work.”
Based on that analysis, Latowski was able to show that North Woods treated non-pregnant certified nursing assistants with similar lifting restrictions (and therefore, with abilities and inabilities to work that are similar to Latowski’s) more favorably by allowing them to work light duty jobs, while precluding her from doing so.
This analysis raises a critical point for employers that make their light duty policies available only to employees with work-related injuries. It does not change the fact that an employer can adopt a light duty policy that restricts individuals with non-work-related injuries from light duty accommodations. However, what it does do, in essence, is instruct employers that pregnancy-related restrictions cannot be viewed as a non-work-related injury if, in fact, the pregnant employee is similarly restricted from working as a non-pregnant employee who has a work-related injury is.