Pregnancy Accommodation Case Turns on Similar Ability to Do the Job, Not “Similarly Situated” Test

Kimberly R. Ward & Patricia Anderson Pryor

Jackson Lewis P.C.

If an employer provides light duty to employees injured on the job, does it have to provide light duty to pregnant employees? The Eleventh Circuit Court of Appeals recently wrestled with this question.

In Durham v. Rural/Metro. Corp., the Eleventh Circuit held that a pregnant employee, who was denied light duty after being placed on lifting restrictions, satisfied the fourth prong of the prima facie case by establishing that her employer had accommodated others who could not lift due to on-the-job injuries. The U.S. Court of Appeals for the Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia.

Background

Kimberlie Michelle Durham was an emergency medical technician (EMT). The job required her to regularly lift 100 pounds.

After Durham became pregnant, her physician advised her to refrain from lifting more than 50 pounds. Durham requested a temporary light duty or dispatcher assignment for the duration of her pregnancy.

Evidence in the case showed that other EMTs who had suffered injuries on the job and were restricted to lifting no more than 10 or 20 pounds were accommodated. Additionally, the company’s employee handbook stated that, on a case-by-case basis, it accommodated employees who were “unable to perform some of their job functions due to a medical condition.” Despite the written policy, the company had a practice of not granting such accommodations to employees who had been injured off the job.

In Durham’s case, the company denied her request for accommodation. Durham sued the company for pregnancy discrimination under the Pregnancy Discrimination Act (PDA). The company moved for summary judgment. The district court granted summary judgment to the company, concluding Durham failed to establish the fourth prong of a prima facie case under the PDA.

Fourth Prong: Ability to Do Job

On appeal, the Eleventh Circuit reversed the district court’s decision. It held that a pregnant employee denied light duty after being placed on restrictions requiring she lift no more than 50 pounds satisfied the fourth prong of a prima facie case under the PDA by establishing her employer had accommodated others who were restricted from lifting more than 10 or 20 pounds due to on-the-job injuries.

The Court explained that, unlike other discrimination cases, where employers must prove the fourth prong of a prima facie case by showing that other employees (comparators) who were treated differently were “similarly situated,” in pregnancy accommodation cases, plaintiffs need to show only that they were “similar in their ability or inability to work.”

The Eleventh Circuit applied the McDonnell Douglas burden-shifting framework set by the U.S. Supreme Court in Young v. UPS. The Supreme Court said a plaintiff may make out a prima facie case of discrimination by showing:

1. she is a member of a protected class;
2. she requested an accommodation;
3. the employer refused her request; and
4. the employer nonetheless accommodated others similar in their ability or inability to work.

Analyzing those factors, the Eleventh Circuit held the district court had mistakenly determined Durham and non-pregnant employees who could not fulfill the 100-pound lifting requirement were not “similar in their ability or inability to work.” The Court concluded the district court arrived at this determination because it erroneously factored into the “similar in their ability or inability to work” evaluation the distinct, post-prima-facie-case consideration of the company’s purported legitimate, non-discriminatory reasons for treating Durham and non-pregnant employees differently.

The Court held Durham’s inability to lift more than 50 pounds and her colleagues’ inabilities to lift more than 10 or 20 pounds rendered both Durham and her non-pregnant colleagues equally unable to perform the 100-pound lifting duties of an EMT, making them appropriate comparators for the prima facie case.

Luckily for employers, this does not end the analysis. The Eleventh Circuit remanded the case to the district court to determine whether the employer’s legitimate reason for treating Durham differently than those injured on the job was pretextual. One of the reasons offered by the employer was the light duty policy applied only to those injured on the job.

Concurring Opinion

In his concurring opinion, Judge Danny J. Boggs (sitting by designation from the Sixth Circuit) called out the “complexities” of Young “and the gaps that it leaves in our understanding of how trial courts should proceed in PDA cases once a prima facie case is made.”

Judge Boggs continued, “[A]n employer can still make the argument that it has not discriminated by treating a pregnant employee the same as one injured off the job. Such an argument has been moved as to its proper placement, not done away with.”

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While the Court’s decision clarifies the PDA’s requirements for proving the prima facie case, it left open the question of whether the company may ultimately succeed when it distinguishes between those injured on the job and those who were not.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***