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Florida Bar Journal

Pregnancy Discrimination-Rights, Remedies, and Defenses

Congress enacted the Pregnancy Discrimination Act (PDA)1 i n 1978 to add

pregnancy as a protected status under Title VII of the Civil Rights Act of 1964.2 T he PDA requires equal treatment with respect to terms, conditions, and privileges of employment, including leaves of absence and benefits. The PDA does not require preferential treatment.3

The more recent enactment of the Americans With Disabilities Act of 1990 (ADA),4 t he Civil Rights Act of 1991, and the Family and Medical Leave Act of 1993 (FMLA)5 h ighlighted the PDA’s limitations and provided rights in circumstances not previously covered. This article discusses rights, remedies, and defenses under these laws for employees and employers.

Origin of the PDA

The Supreme Court held in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), that a comprehensive disability insurance plan did not violate Title VII by failing to cover pregnancy-related disabilities. In response, Congress added a subsection to Title VII to provide that sex discrimination includes discrimination on the basis of pregnancy, childbirth or related conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.6

Pregnancy, Childbirth,
and Related Conditions

Courts have permitted claims by employees who are pregnant, are trying to become pregnant, 7 h ave miscarriages,8 h ave or consider having abortions,9 g ive birth, and have medical conditions relating to pregnancy and birth. An employer also violates the PDA by limiting pregnancy benefits for wives of male employees when compared to more extensive health plan coverage for other conditions of spouses of male and female employees.10 S tatus as a “new parent” is not within the purview of the PDA.11

Disparate Treatment

M ost pregnancy discrimination cases involve disparate treatment — that is, treating pregnant employees less favorably than nonpregnant employees. Disparate treatment claims involve intentional discrimination. Thus, an employer cannot be liable in a disparate treatment case unless it knows about the condition.12

Disparate treatment cases are established by direct evidence or through the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Direct evidence is evidence that “if believed, would prove the existence of the fact [in issue] without inference or presumption.”13

A prima facie case is established under the McDonnell Douglas framework if 1) plaintiff is a member of the protected group; 2) plaintiff is qualified for the position; 3) plaintiff suffers an adverse effect on employment; and 4) plaintiff suffers from differential application of work or disciplinary rules.14 A lternatively, the fourth step may consist of replacement by a nonpregnant employee.15 T he defendant may then present a nondiscriminatory reason for its action. The plaintiff must show that the reason is a pretext for discrimination.

Most cases under the PDA involve either employment termination or discriminatory application of leave policies. Liability may exist when nonpregnant workers were retained after violating the same rules or suffering from the same poor performance.16 T iming (soon after the employer learns of the pregnancy) is helpful for the plaintiff but not determinative.17

An employer faced with a termination case should be prepared to explain the legitimate reason for its action. In addition to typical business reasons, grounds for termination recently upheld by courts have included the fact that the employee became pregnant while having an affair with a high level employee18 a nd the application of a religious school’s nondiscriminatory policy regarding sex outside of marriage.19

In general, employers fare better with evidence that the termination decision was made or, at a minimum, that the employee was counseled, before the employer knew of the pregnancy. If a reduction in force led to the termination, the employer must be prepared to explain the financial or other business factors leading to the decision. Other facts supporting nondiscriminatory intent include knowledge that the employee was pregnant when hired and a record of past nondiscriminatory treatment of other pregnant employees.20 T he fact that the decision-maker had been pregnant while with the employer is also a positive factor.21

An employer must administer sick and medical leaves in the same manner for pregnant employees as for nonpregnant employees.22 F or example, employers should allow the same leave time for pregnancy and childbirth as for other medical conditions. Employers should not require pregnant employees to document the need for leave time (or the ability to continue working) in a manner not required of other employees.23

A plaintiff will not sustain her burden of proof simply because all employees, pregnant or nonpregnant, are limited to a specific amount of leave time.24 S imilarly, a plaintiff who cannot establish the circumstances of leaves of other employees to whom she seeks to compare herself may not prevail.25 T o avoid PDA litigation founded on misunderstandings about leaves of absence, employers and employees should document expectations before the leave begins.

A plaintiff denied leave rights expressly granted under an employer’s written policy may not have to prove that other employees were treated more favorably. In Byrd v. Lakeshore Hospital, 30 F.3d 1380 (11th Cir. 1994), the employer contended that the employee, terminated when using sick leave allowed under the employer’s policy, was required to show that other employees were treated better — that is, that they were neither denied company sick leave nor fired for using it. The 11th Circuit rejected this, holding that “the only logical inference to be drawn in this case is that the [employer’s policy] customarily was followed. A contrary result would amount to a presumption. . . that [the employer] commonly discharges employees for taking their allotted sick time. If such is the case, then the burden was on [the employer] to prove this unusual scenario.”26

Disparate Impact

A disparate impact claim involves a facially neutral policy or practice that impacts one group more harshly than another in a manner that cannot be justified by business necessity.27 P roof of intentional discrimination is not required.

In Armstrong v. Flowers Hospital, Inc., 33 F.3d 1308 (11th Cir. 1994), the 11th Circuit rejected a disparate impact claim by a pregnant nurse challenging the policy of a home services company that required nurses to treat all patients, even those who were HIV-positive. Because the policy was facially neutral, the plaintiff argued that adverse impact was created by the “difficult choice” forced on an employee required to choose between her job and the health of her fetus. The court held that consistent application of the policy did not violate the PDA because the plaintiff failed to demonstrate a disproportionate impact on pregnant employees. Moreover, the plaintiff’s “difficult choice” reasoning was contrary to the 1991 holding of the U. S. Supreme Court in Int’l Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), which required that a woman be allowed the choice of working despite possible risk to her unborn child. The court also rejected the concept that an employer had to find the plaintiff alternate duties and stated uncategorically that the PDA requires no preferential treatment.

Fetal Protection Policies

Pregnant employees cannot be denied employment privileges allowed to other employees. Therefore, according to the Supreme Court in Johnson Controls, a fetal protection policy violates the PDA where “[f]ertile men, but not fertile women, [were] given a choice as to whether they wish[ed] to risk their reproductive health.”28 J ohnson Controls had a policy excluding all women capable of having children from jobs involving production of batteries. All nine justices agreed that the policy was unlawful, although the Court was divided on whether such policies could ever be justified.

Harassment and
Retaliation Under the PDA

Pregnancy harassment is actionable.29 I n addition, male and female employees treated adversely for engaging in protected activity under the PDA have retaliation claims.30 T he elements of a prima facie case of retaliation include 1) statutorily protected expression; 2) adverse employment action; and 3) a causal link between the two.31 T he employer may rebut the prima facie case by articulating a legitimate reason for the action. The plaintiff has the ultimate burden of showing retaliation.

Defenses in PDA Cases

When defending a pregnancy discrimination case, counsel should consider all defenses otherwise available under Title VII. Three of the more significant are the statutory “mixed motive” defense and the defenses of bona fide occupational qualification and business necessity.

An employer may be liable for action taken on the basis of a mixture of motives, some discriminatory and some legitimate. Pursuant to 42 U.S.C. §2000e-2(m), an unlawful practice is established when pregnancy or a related condition “was a motivating factor for any employment practice, even though other factors also motivated the practice.” However, pursuant to 42 U.S.C. §2000e-5(g)(2)(B), if the employer demonstrates it would have taken the same action absent the impermissible factor, the plaintiff may be entitled to only certain equitable relief, attorneys’ fees, and costs.32

It is lawful to discriminate on the basis of pregnancy if it “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”33 I n a disparate impact case, an employer may assert the defense of business necessity.34

The Americans With Disabilities Act

The ADA prohibits discrimination because of a “disability” and, unlike the PDA, requires reasonable accommodation for protected individuals. Most courts considering the question have held that pregnancy is not a disability under the ADA.35 I n fact, the Equal Employment Opportunity Commission states that “conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments” and, therefore, not disabilities.36 O n the other hand, some courts have held that conditions relating to pregnancy, fertility, and childbirth could substantially affect major life activities and, therefore, constitute disabilities.37

Even if the ADA does not apply to most pregnancies, its enactment may result in more frequent accommodation of medical conditions of pregnant employees. Some employers now try to accommodate all employees with medical conditions without formally determining that the employees have disabilities under the ADA. Pregnant employees are entitled to receive the same treatment under such formal or informal policies.38

The Civil Rights Act of 1991

The Civil Rights Act of 1991 changed many aspects of the rights, remedies, and defenses in a PDA case. The more significant changes relate to remedies and the right to a jury trial. Plaintiffs now may recover compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.”39 P unitive damages are also available if the defendant acted “with malice or reckless indifference” to federally protected rights.40

The Family and
Medical Leave Act

The FMLA broadened the rights of parents and individuals with pregnancy-related conditions. FMLA requires employers with at least 50 employees to provide 12 workweeks of job-protected leave to men and women caring for a child after birth, adoption, or in connection with foster care. The law also protects the jobs of women with serious medical conditions relating to pregnancy and childbirth, and men and women caring for such persons in their immediate families.

An employee bringing an FMLA action may seek pay, benefits, reinstatement, and some damages, but is not entitled to the compensatory and punitive damages now allowed under the PDA.

Employers defending FMLA litigation will prevail when they can demonstrate compliance with FMLA’s requirements. Employers’ counsel also should review, among other preliminary issues, whether the employer is covered by the FMLA, whether the plaintiff is an eligible employee, whether the plaintiff had a serious health condition, and whether the plaintiff notified the employer of the need for leave.

The Future of Parental Rights in the Workplace

Parental rights, including rights relating to pregnancy, childbirth, and parental leave, will continue to expand in view of our national concern for children and families. Proposed legislation would expand FMLA and cover smaller employers. This continued change will provide employer and employee counsel and the courts with even more challenges as they sort out the myriad of overlapping claims.
q

1 42 U.S.C. §2000e(k). The Equal Employment Opportunity Commission issued guidelines and “Questions and Answers” on the PDA at 29 C.F.R. pt. 1604.
2 42 U.S.C. §2000e et seq. Title VII, which applies to employers with 15 or more employees, makes it unlawful to refuse to hire, to discharge or “otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions or privileges of employment” because of sex or other protected statuses. 42 U.S.C. §2000e-2(a).
3 California Federal Savings & Loan Ass’n v. Guerra , 479 U.S. 272 (1987).
4 42 U.S.C. §§12101 et seq.
5 29 U.S.C. §§2601 et seq. This article will not cover state law claims or the issue of state law preemption.
6 42 U.S.C. §2000e(k).
7 E.g., Jolley v. Phillips Educational Group of Central Florida, Inc., 1996 U.S Dist. LEXIS 19832 (M.D. Fla. 1996); Cleese v. Hewlett-Packard Co. , 911 F. Supp. 1312 (D. Or. 1995); Pacourek v. Inland Steel Co., 858 F. Supp. 1393 (N.D. Ill. 1994); but see Krauel v. Iowa Methodist Medical Ctr., 95 F.3d 674 (8th Cir. 1996).
8 E.g., Weiner v. Flyer Pub. Co., 945 F. Supp. 1559 (S.D. Fla. 1996).
9 E.g., Turic v. Holland Hospitality, Inc., 85 F.3d 1211 (6th Cir. 1996).
10 Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S. Ct. 2622, 77 L. Ed. 2d 89 (1983).
11 Piantanida v. Wyman Ctr., Inc. , 116 F.3d 340 (8th Cir. 1997).
12 E.g., Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578 (3d Cir. 1996).
13 Burrell v. Board of Trustees of Ga. Military College, 125 F.3d 1390, 1393 (11th Cir. 1997).
14 Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1314 (11th Cir. 1994).
15 E.g., Weiner, 945 F. Supp. 1559 ; Bush v. Barnett Bank of Pinellas County, 916 F. Supp. 1244 (M.D. Fla. 1996).
16 See, e.g., Kennedy v. Delchamps, Inc., 1997 U.S. Dist. LEXIS 15192 (S.D. Ala. 1997).
17 See, e.g., Bennett v. J.C. Duke and Assocs., 1996 U.S. Dist. LEXIS 7271 (S.D. Ala. 1996); Bush, 916 F. Supp. 1244 .
18 Kelly v. K.D. Const. of Florida, Inc., 866 F. Supp. 1406 (S.D. Fla. 1994).
19 Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996).
20 E.g., Ulloa v. American Express Travel Related Servs. Co., 822 F. Supp. 1566, 1571 (S.D. Fla. 1993).
21 E.g., Katchuk v. Pembrook Management, Inc., 1991 U.S. Dist. LEXIS 16491 (M.D. Fla. 1991).
22 Garner v. Wal-Mart Stores, 807 F.2d 1536 (11th Cir. 1987).
23 E.g., Deneen v. Northwest Airlines, Inc., 132 F.3d 431 (8th Cir. 1998); EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944 (10th Cir.), cert. denied, 506 U.S. 817, 113 S. Ct. 60, 121 L. Ed. 2d 28 (1992).
24 See, e.g., Ulloa, 822 F. Supp. 1566 .
25 E.g., Walsh v. Food Supply, Inc., 1997 U.S. Dist. LEXIS 20607 (M.D. Fla. 1997).
26 Byrd, 30 F.3d 1380.
27 Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335–46 n. 15, 97 S. Ct. 1843, 1854–55 n. 15, 52 L. Ed. 2d 396, 415 n. 15 (1977).
28 Int’l Union UAW v. Johnson Controls, Inc., 499 U.S. 187, 197, 111 S. Ct. 1196, 1202, 113 L. Ed. 2d 158 (1991).
29 E.g., White v. QMS, Inc., 1997 U.S. Dist. LEXIS 17572 (S.D. Ala. 1997).
30 E.g., Godby v. Electrolux Corp., 1994 U.S. Dist. LEXIS 19831 (N.D. Ga. 1994), aff’d, 58 F.3d 641 (11th Cir. 1995), cert. denied, 517 U.S. 1120, 116 S. Ct. 1352, 134 L. Ed. 2d 520 (1996).
31 E.g., Coutu v. Martin Co. Bd. of Co. Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995).
32 Compare Burrell, 125 F.3d at 1394–96 with Canup v. Chipman-Union, Inc., 123 F.3d 1440 (11th Cir. 1997).
33 42 U.S.C. §2000e-2(e)(1).
34 42 U.S.C. §2000e-2(k); Hayes v. Shelby Memorial Hosp., 726 F.2d 1543 (11th Cir. 1984).
35 E.g., White v. QMS, Inc., 1997 U.S. Dist. LEXIS 17572 (S.D. Ala. 1997) ; Walsh v. Food Supply, Inc., 1997 U.S. Dist. LEXIS 9644 (M.D. Fla. 1997); see also Kraul v. Iowa Methodist Medical Center , 95 F.3d 674 (8th Cir. 1996).
36 29 C.F.R. Pt. 1630, App. §1630.2(h).
37 Compare Lacoparra v. Pergament Home Ctrs., Inc., 982 F. Supp. 213 (S.D.N.Y. 1997); Darian v. Univ. of Mass., 980 F. Supp. 77 (D. Mass. 1997); Hernandez v. City of Hartford, 959 F. Supp. 125 (D. Conn. 1997); Cerrato v. Durham, et al., 941 F. Supp. 388 (S.D.N.Y. 1996); Garrett v. Chicago Sch. Reform Bd. of Trustees, 1996 U.S. Dist. LEXIS 10194 (N.D. Ill. 1996); with Wenzlaff v. NationsBank, 940 F. Supp. 889 (D. Md. 1996); Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 465 (D. Kan. 1996); Kindlesparker v. Metropolitan Life Ins. Co., 1995 U.S. Dist. LEXIS 6164 (N.D. Ill. 1995).
38 See Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996).
39 42 U.S.C. §1981a(b)(3).
40 42 U.S.C. §1981a(b)(1).

Alexandra Krueger Hedrick practices in Jacksonville with Hedrick, Dewberry & Regan, P.A., a litigation firm. Ms. Hedrick concentrates primarily in employment and ERISA litigation and appellate work. She received her B.A. from Stetson University in 1976 and her J.D. from the University of Florida in 1979, where she was senior executive editor of the law review.

This column is submitted on behalf of the Labor and Employment Law Section, David J. Linesch, chair, and F. Damon Kitchen, editor.