Pregnancy-Blind Light Duty Policy Not Enough To Obtain Summary Judgment On Pregnancy Discrimination Claim In New Sixth Circuit Case

by FordHarrison

Executive Summary: The Sixth Circuit recently held that a certified nursing assistant (CNA) should be permitted to take her Pregnancy Discrimination Act claim to trial even though the employer terminated her based on its facially neutral policy that provided light duty work only for employees who were injured on the job.  The court held that a jury should determine whether the policy, when considered in conjunction with discriminatory remarks made by managers, was pretext for discrimination.  See Latowski v. Northwoods Nursing Ctr. (6th Cir. December 23, 2013). 

In this case, Jennifer Latowski, a CNA, advised her employer that due to her pregnancy she had been placed on a fifty-pound lifting restriction.  The employer terminated her employment based on its facility neutral light duty policy – that light duty would only be provided to employees with work-related injuries.  The CNA filed suit alleging disability discrimination and pregnancy discrimination.  The lower court dismissed her claims but the Sixth Circuit held that she may, in fact, have a pregnancy discrimination claim, although no disability claim. 

In a departure from the traditional understanding that an employer may lawfully limit light duty work to those employees injured on the job, the Sixth Circuit found that the employer treated other CNAs with similar lifting restrictions more favorably by assigning them to light duty, noting "Although these employees differed from Latowski because their medical conditions were work-related, they were similarly situated in their ability to work because they were placed under lifting restrictions of up to fifty pounds."  The court noted that several statements made by employer's administrators revealed discriminatory animus against pregnant women, including that Latowski "wouldn't want to lose [her] baby," the company "would be liable if something happened to her baby and we had allowed her to work against her doctor's advice," and her "belly would be in the way."  The court found that the comments were made by either the decision maker or a high-level manager and were made directly in relation to Latowski's termination.

In light of these statements, the court found that a jury should decide whether the employer's business decision to implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace injuries, even if those restrictions did not limit the employees' ability to competently perform their jobs, was a pretext for discrimination.  In a footnote, the Sixth Circuit explained, "Under the ordinary Title VII analysis, employees who were restricted because of work-related injuries would be inappropriate comparators because they are not similarly situated in all respects. However, . . . .the [Pregnancy Discrimination Act] requires only that the employee be similar in his or her ability or inability to work."

It appears that the key factors swaying the Sixth Circuit included the fact that Latowski passed "essential functions" tests after her pregnancy arose, but before the fifty-pound restriction was in place, yet she was still terminated, and the managers' stereotypical statements about Latowski's ability to perform her job while pregnant.  Had these two facts been different, the outcome may have been different. 

Employers' Bottom Line:  While employers traditionally have been permitted to limit light duty work to those employees injured on the job, employers are cautioned not to blindly rely on their facially neutral policies when confronted with pregnancy-related restrictions.  Here it appears that there was some workplace hostility that undercut the application of an otherwise neutral policy.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© FordHarrison | Attorney Advertising

Written by:


FordHarrison on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.