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Employment & Labor Law for Public Safety Agencies
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Pregnancy Policies and Discrimination
Monthly Law Journal Article: Rights of Nursing Public Employees, 2011 (3) AELE Mo. L. J. 201.
After a sheriff’s department decided not to reinstate a female deputy, she sued, claiming pregnancy and disability discrimination, as well as sex discrimination and unlawful retaliation. She had been accused of acquiring a controlled substance through fraud, and was charged with a felony, but she pled not guilty. She was then put on administrative leave and terminated one month later. A state court found her not guilty and she applied for reinstatement when a position opened up. The position was filled by a male candidate. A federal appeals court affirmed the trial court’s dismissal of her claims and held that her Title VII claim failed because she did not plead any facts showing that another candidate was similarly situated or went through a reinstatement process. Because her state claim mirrored her Title VII claim, it likewise failed. Jones v. Douglas County Sheriff’s Department, #17-3196, 2019 U.S. App. Lexis 3650,2019 WL 452782 (8th Cir.).
The standard for determining whether punitive damages may be awarded for pregnancy discrimination under the New York City Human Rights Law, as certified by the highest court in New York to a federal appeals court, is not the same as the federal standard for awarding such damages (which requires intentional discrimination done with malice or with reckless disregard of the employee’s rights), but rather whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard. Chauca v. Abraham, #15-1777, 2018 U.S. App. Lexis 6543 (2nd Cir.).
A female corrections officer claimed
that she was subjected to a violation of her rights under the Pregnancy
Discrimination Act of 1978, 42 U.S.C. 2000e(k),.under the employer's light duty
policy, under which only employees injured on the job were eligible for light
duty assignments. Overturning judgment as a matter of law for the defendants, a
federal appeals court ruled that a reasonable jury could conclude that it was
more likely than not that the policy was motivated by a discriminatory intent,
and a reasonable jury could further find that the county's current explanation,
compliance with a state statute concerning light duty for injured employees,
was pretextual; Nothing in the state statute prohibited the employer from
offering the same light duty accommodation to pregnant employees. Legg v.
Ulster Cnty, #14-3636, 820 F.3d 67, 100 Empl. Prac. Dec. (CCH) P45539, 129 Fair
Empl. Prac. Cas. (BNA) 37, 94 Fed. R. Serv. 3d (Callaghan) 741 (2nd Cir. 2016).
In a case
involving a private employer, the U.S. Supreme Court, by a 6-3 vote, further
clarified the analysis of what is required for an employer to raise a claim of
disparate treatment for pregnancy discrimination under Title VII. A pregnant
employee must show that the employer's accommodation policy imposes a
"significant burden" on pregnant employees and that the employer's
basis for enforcing that policy does not have a "sufficiently strong
justification." In this case, a UPS driver became pregnant and her doctor
directed that she not lift more than 20 pounds, while the employer required its
drivers to lift up to 70 pounds. The employer refused to let her work under her
doctor's lifting restriction, and the employee argued that this imposed a
disparate burden on pregnant employees as other policies better accommodated
employees who were injured on the job, disabled employees covered by the
Americans with Disabilities Act, or who had lost Department of Transportations
certifications. The Supreme Court vacated summary judgment for the employer,
finding that the employee created a genuine dispute as to whether the employer
provided more favorable treatment to some employees whose situation could not
reasonably be distinguished from hers. Young v. United Parcel Service, Inc.,
#12-1226, 2015 U.S. Lexis 2121, 25 Fla. L. Weekly Fed. S 155, 126 Fair Empl.
Prac. Cas. (BNA) 765.
The EEOC sued an employer, claiming that it unlawfully
fired an employee because she was lactating and wanted to express milk at work.
A federal appeals court overturned a trial court decision that doing this did
not constitute sex discrimination, ruling that it did. Lactation was a related
medical condition, in addition, for purposes of a claim under the Pregnancy
Discrimination Act. While the lawsuit involved a private employer, the reasoning
would also apply to a public employer. EEOC v. Houston Funding II,
#12-20220 2013 U.S. App. Lexis 10933 (5th Cir.).
A city employee claimed that she had been fired because
of her pregnancy in violation of California state law, while the city argued
that she had been terminated for poor job performance. The trial court refused
to instruct the jury that if it found a mix of both legitimate and
discriminatory motives for the firing, then the city could avoid liability by
proving that the legitimate motive, standing by itself would have resulted in
it making the same decision to terminate her. The jury then returned a
substantial verdict for the plaintiff.
The California Supreme Court ruled that, under
the state employment discrimination statute "when a jury finds that
unlawful discrimination was a substantial factor motivating a termination of
employment, and when the employer proves it would have made the same decision
absent such discrimination, a court may not award damages, back pay, or an
order of reinstatement." However, in such cases, a plaintiff can still be
awarded declaratory or injunctive relief to stop discriminatory practices and
be awarded reasonable attorney's fees and costs. The damage award was
overturned, and further proceedings were ordered. Harris v. City of Santa
Monica, ##S181004, 2013 Cal. Lexis 941.
Several months after a computer technician for a
sheriff's department informed the employer that she was pregnant, she was transferred
to a less satisfying position at the same pay. When she was later transferred
back, she was fired. A federal appeals court upheld a jury verdict awarding her
$80,000 in back pay and $10,000 for emotional distress for pregnancy
discrimination. She was only required to show that the pregnancy was one of the
motivating factors in the adverse actions against her, not that it was the sole
factor. In this case, a supervisor's statement that the pregnancy was part of
her reasoning was sufficient on claims relating to the transfer. The sheriff's
statement that he believed that the plaintiff was a contractor rather than an
employee was not genuine or in good faith, and she prevailed on her claim that
her pregnancy was a motivating factor for her firing. Holland v. Gee,
#11-11659, 2012 U.S. App. Lexis 7729 (11th Cir.).
Pregnant police officer prevails in her
gender discrimination lawsuit. Management could not deny her a light duty
assignment because her "injury" was not duty-incurred. Germain v.
County of Suffolk, #07-CV-2523, 2009 U.S. Dist. Lexis 45434, 108 FEP Cases
(BNA) 208 (E.D.N.Y. 2009).
After 9 years of litigation and appeals, the
Fifth Circuit affirms dismissal of pregnancy bias action brought by a Border
Patrol agent who was given permission to breast feed her newborn child during
two 30-minute breaks. Under the Pregnancy Discrimination Act, the agent was not
entitled to receive additional paid breaks on top of the 70-minutes of break
time allocated to all employees. Puente v. Ridge, #08-40282, 2009 U.S. App.
Lexis 10406, 106 FEP Cases (BNA) 678 (Unpub. 5th Cir.).
Florida appellate court
reinstates an action brought by a pregnant firefighter who was denied a light
duty assignment in the fire dept. while others with physical restrictions had
been accommodated with light duty in the fire dept. Carsillo v. City of Lake
Worth, #4D07-4236, 2008 Fla. App. Lexis 18071.
Third Circuit holds that terminating a
non-tenured employee for having an abortion violates the federal Pregnancy
Discrimination Act. Doe v. C.A.R.S. Protection Plus, #06-3625, 527 F.3d 358,
2008 U.S. App. Lexis 11519; 103 FEP Cases (BNA) 577 (3rd Cir.).
Tenth Circuit reinstates a suit filed by women
police officers that alleged that when they took maternity leave, the city
required them to do so in a way that adversely affected their eligibility for
early retirement, limited their ability to work overtime, and differed
significantly from how other employees seeking time off for other medical
purposes were treated. A reasonable jury could find that the city's
justification was a pretext for intentional discrimination. Orr v. City of
Albuquerque, #07-2105, 2008 U.S. App. Lexis 14505 (10th Cir.).
After a county police dept. refused to allow
light duty status for pregnant officers, a jury awarded damages to five women
plaintiffs. The court also awarded plaintiffs $578,704 for attorneys' fees and
costs, noting that "the plaintiffs did not justify the need to retain
sixteen attorneys and thirteen support staff from five different firms/agencies
to represent six plaintiffs with essentially the same claims" thus
reducing the number of overall hours by 25%. Lochren v. Co. of Suffolk,
#CV-01-3925, 2008 U.S. Dist. Lexis 38100 (E.D.N.Y.).
New Illinois law makes it unlawful for a public
employer to refuse to temporarily transfer a pregnant female peace officer or
firefighter "to a less strenuous or hazardous position for the duration of
her pregnancy if she so requests, with the advice of her physician, where that
transfer can be reasonably accommodated." Public Act 095-0025 (Eff.
1/1/2008).
Federal appeals panel holds that a denial of
health care coverage for all types of contraception, for both men and women,
does not discriminate against women or violate the Pregnancy Discrimination
Act. In re: Union Pacific Railroad Employment Practices Litigation, #06-1706,
2007 U.S. App. Lexis 5914, 100 FEP Cases (BNA) 178 (8th Cir.).
Eighth Circuit holds that an employer does not
violate the Pregnancy Discrimination Act by denying coverage under its health
care plan for contraceptives unless they are medically needed. Standridge v.
Union Pacific RR., #06-1706, 2007 U.S. App. Lexis 5934.
Pregnant police officer that was denied a light
duty assignment was unable to show that males were treated more favorably.
Tysinger v. Police Dept. of Zanesville, #05-3785, 463 F.3d 569, 2006 U.S. App.
Lexis 24144, 98 FEP Cases (BNA) 1705 (6th Cir. 2006). {N/R}
Pregnant officer's discrimination suit fails.
Although two male officers were injured while off duty, unlike her, they did
not seek a light duty assignment. Tysinger v. Police Dept. of the City of
Zanesville, #05-3785, 463 F.3d 569, 2006 U.S. App. Lexis 24144 (6th Cir. 2006).
{N/R}
Federal court rules that a police dept. policy
that restricts light duty assignments to officers injured on the job
discriminates against pregnant officers. Damages awarded. Lochren v. Co. of
Suffolk, #2:01-cv-03925, Pacer Doc. #152 (E.D.N.Y. 2006). [2006 FP Sep]
Employer's light-duty policy did not support an
inference of pregnancy discrimination. Reeves v. Swift Transp., #05-5271, 446
F.3d 637, 2006 U.S. App. Lexis 12046, 2006 FED App. 0163P (6th Cir. 2006. {N/R}
{N/R}
In a 4-to-3 decision, the New Jersey Supreme
Court has ruled that an employer's policy of limiting all medical leaves,
regardless of purpose, to 26 weeks does not violate the state's pregnancy
discrimination law, N.J.S.A. 10:5-1. The majority declined to recognize a claim
that the rule had a disparate impact on women and followed federal law, which
provides that "women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employment-related purposes ... as
other persons not so affected ..." 42 U.S. Code §2000e(k). Gerety v. Atlantic
City H.C.R., 184 N.J. 391, 877 A.2d 1233, 2005 N.J. Lexis 931 (2005). {N/R}
Federal appeals court reverses a summary judgment
for the city, in a suit brought by two women police officers in Albuquerque,
N.M. They claimed that they were treated differently from male employees when
they were not allowed to use compensatory time during their maternity leaves.
Orr v. City of Albuquerque, #03-2287, 417 F.3d 1144, 2005 U.S. App. Lexis
15852, 96 FEP Cases (BNA) 231 (10th Cir. 2005). {N/R}
Five women state Massachusetts troopers who
alleged that the state violated the state and federal law by placing them on
temporary modified duty during their pregnancies have no cognizable claim
against the medical contractor that made the modified duty recommendation under
either state or federal civil rights law. Butner v. Dept. of State Police,
#02-P-390, 60 Mass. App. 461, 2004 Mass. App. Lexis 180, 93 FEP Cases (BNA) 602
(2004). {N/R}
Arbitrator holds that management did not violate
the bargaining agreement when it stopped paying for health insurance for a
pregnant police officer who was on FMLA leave, and ineligible for group
coverage. Vil. of Huntley, IL and Metrop. Alliance of Police C-207, 120 LA
(BNA) 949, FMCS #040218/03758-A (Cox, 2004). {N/R}
Federal appeals court rejects a pregnancy
discrimination claim brought by a part-time public employee. Part-time workers
are excluded from the federal Family and Medical Leave Act. Her failure to
report for work during her ninth month of gestation was a "constructive"
resignation. Allan v. Springville City, #03-4180, 388 F.3d 1331, 2004 U.S. App.
Lexis 23363, 21 IER Cases (BNA) 1822 (10th Cir. 2004). {N/R}
Although state police management involuntarily
placed pregnant troopers on light duty when they were unable to perform 131
tasks that no state police officer "was likely ever to perform,"
including roping a steer and lifting a 800-pound motorcycle to an upright
position, the women were not entitled to recover damages against the medical personnel
for "extreme and outrageous" conduct. Butner v. Dept. of State
Police, #02-P-390, 60 Mass.App.Ct. 461, 803 N.E.2d 722, 2004 Mass. App.
Lexis180, 93 FEP Cases(BNA) 602 (2004). {N/R}
Where the evidence shows that the plaintiff was
fired because of absenteeism, not her pregnancy, she could not recover under
the Pregnancy Discrimination Act of 1978. Stout v. Baxter Healthcare, #99CV129,
2002 U.S. App. Lexis 2573 (5th Cir. 2002). [N/R]
Federal court in Seattle orders an employer to
cover the cost of prescription contraceptives in its insurance plan. Erickson
v. The Bartell Drug Co., #C00-1213L, 2001 U.S. Dist. Lexis 7550 (W.D. Wash.
2001). Also see, "Sex Discrimination and Insurance for
Contraception," by Sylvia A. Law, 73 Wash. L. Rev. 363 (1998). [2001 FP
120]
Pregnant officer who was forced to take maternity
leave could sue for discriminatory treatment. Dimino v. NYCTA, 64 F.Supp.2d
136, 1999 U.S. Dist. Lexis 14137 (E.D.N.Y.). [2000 FP 25-6]
Pregnant employee who was fired for absenteeism
could challenge her employer's attendance policy, on the ground the policy has
a disparate impact on pregnant employees. Dormeyer v. Comerica Bank, 223 F.3d
579, 2000 U.S. App. Lexis 17727, 83 FEP Cases (BNA) 700 (7th Cir. 2000). {N/R}
A divided Michigan Supreme Court holds that
abusive nonsexual comments about an employee's pregnancy gives rise to a civil
action for gender discrimination. Jury verdict of $5,000 is upheld. Koester v.
City of Novi, 580 N.W.2d 835 (Mich. 1998). [1999 FP 123-4]
Pregnancy leave can be less generous than leave
for workers who are disabled for a job-related injury, provided it is treated
the same as other nonoccupational illnesses and injuries. Spaziano v. Lucky
Stores, 78 FEP Cases (BNA) 1516, 1999 Cal. App. Lexis 26, 81 Cal.Rptr.2d 378.
[1999 FP 58]
California appeals court concludes that
hysterectomy is not a pregnancy-related medical condition for leave purposes.
Williams v. MacFrugal's, 67 Cal.App.4th 479, 79 Cal.Rptr.2d 98, 78 FEP Cases
(BNA) 129, 1998 Cal. App. Lexis 886. [1999 FP 26]
Physician that rendered a medical judgment to an
employer concerning whether it was in the best interests of an applicant to
work while pregnant, could not be sued for a civil rights violation. His
opinion was not limited to the narrow question of whether the plaintiff was
physically capable of working safely. Sahai v. Davies, 557 N.W.2d 898, 72 FEP
Cases 1820 (Iowa 1997). {N/R}
Appellate court sustains discrimination claim of
a woman patrol officer, who was terminated because of her pregnancy.
Allison-LeBlanc v. Dept. of State Police, 671 So.2d 448 (La.App. 1996). [1997
FP 41]
Federal court rules that management is not
entitled to test a woman police officer for pregnancy without her consent, and
must obtain a search warrant for that purpose. Judge refuses to dismiss her
damage claims for conducting the test as part of a departmental physical exam.
Ascolese v. SEPTA, 925 F.Supp. 351 (E.D.Pa. 1996). [1996 FP 154-5]
An employer who discovers a person's job is
unnecessary while she is on pregnancy leave can abolish her position without
incurring liability. Smith v. F.W. Morse, 76 F.3d 413, 1996 U.S.App. Lexis 2022
(1st Cir). [1996 FP 123-4]
Federal court refuses to dismiss a damage suit
brought by a pregnant officer, who claims that her superiors willfully delayed
her transfer to a light duty assignment. Ascolese v. SEPTA, 1995 U.S.Dist.
Lexis 14444, 902 F.Supp 533 (E.D.Pa). [1996 FP 8]
Federal judge refuses to dismiss a discrimination
suit by a pregnant officer who alleged her superiors involuntarily removed her
from the canine squad after she informed them of her pregnancy. Duffy v. SEPTA,
1995 U.S.Dist. Lexis 6611, 67 FEP Cases (BNA) 1797 (E.D.Pa.); prior decis. at
1995 U.S.Dist. Lexis 15253. [1996 FP 8]
Summary judgment is denied where the bargaining
agreement provided that pregnant firefighters would be placed on light duty for
the safety of the fetus. Richards v. City of Topeka, 934 F.Supp. 378, 1996 U.S.
Dist. Lexis 11865 (D. Kan.). {N/R}
California jury, under Govt. Code Sec. 12945,
awards a claims investigator $1.2 million in compensatory and $1.5 million in
punitive damages for a wrongful termination, which was prompted by her
pregnancy. Ambruster v. California C.M.C., Santa Clara Co. #724952 (Cal.Sup'r.
1993). [1995 FP 10]
California city pays $85,000 to settle a wrongful
termination suit which alleged pregnancy discrimination. Plaintiff was fired
when she sought additional leave for a gestation-related medical problem. I.D.
Confidential, San Bernadino Co. Super.Ct. 2/24/95, 108 (61) L.A.D.J. V&S 5.
{N/R}
Employer, who demoted an employee because her
pregnancy prevented her from working overtime, is hit with a $403,300 award for
compensatory and punitive damages. Pace v. Shoney's Inc., #93-0207-CV-W-9, 37
(7) ATLA Law Rep. 261 (W.D.Mo. 1994). [1995 FP 10]
ADA does not cover pregnancy discrimination
complaints; employee's sole federal remedy is under Title VII. Byerly v. Herr,
2 AD Cases (BNA) 666 (E.D. Pa. 1993). [1993 FP 91]
Federal court holds a pregnant employee is the
sole judge of whether it is safe to continuing working. An employer's fear of
injury is irrelevant. A defense of poor performance must be raised at the time
of discharge, not at trial. EEOC v. Eucuri Alford Ltd., 62 FEP Cases (BNA) 1018
(E.D.Va. 1993). [1993 FP 172]
Article: "Pregnancy and maternity leave
policies - the legal aspects," by J. Higginbotham, 62 (3) FBI Law Enf.
Bull. 27-32 (Mar. 1993). {N/R}
Employer not required to offer a new mother a
parttime position following her pregnancy leave; her termination, for not
returning to full time employment, did not violate equal employment practices
laws. White v. Univ. of Mass., 59 FEP Cases (BNA) 210 (Mass. 1992). [1992 FP
140]
Pregnant officer who was denied light duty status
when males were so assigned was a victim of sex discrimination. Adams v. Nolan,
962 F.2d 791 (8th Cir. 1992). [1992 FP 154-5]
N.Y. state human rights awards worker $450,000
for miscarriage; public employer refused to assign her to light duty status
during her pregnancy. Nash v. N.Y.C. Transit Auth., N.Y. Hum. Rts. Div.
#E-S-77268-81E and E-OS-81007-82E, 26 G.E.R.R. (BNA) 1786 (10/21/88).
Sheriff's refusal to allow more than 2 months
past birth for pregnancy leave violated federal law. Lunsford v. Leis, 686
F.Supp. 181 (S.D. Ohio 1988).
Policy allowing leaves for pregnancy related
disability but no leaves to employees for other disability was not sex
discrimination. Kan. Gas & Elec. v. Cmsn. on Civil Rights, 750 P.2d 1055
(Kan. 1988).
Medical restrictions imposed by her pregnancy
prevented postal employee from doing job; not eligible for unemployment
benefits. Taylor v. U.S. Postal Service, 413 N.W.2d 736 (Mich. App. 1987).
Nursing director fired because pregnant, was not
required to mitigate damages by seeking lesser position, but not entitled to
“front-pay” when she left job market. Floca v. Homecare Health Serv. 845 F.2d
108 (5th Cir. 1988).
U.S. Justice Dept. files suit against school
district for violation of 1978 pregnancy discrimination act. U.S. v. Bd. of
Educ., Consol. Sch. Dist. 230, U.S. Dist. Ct. (N.D. Ill., filed 4/12/88), U.S.
DoJ. Ref. #CR88-135.
Nontenured teacher was not renewed because of
pattern of lateness, not pregnancy discrimination. Todhunter v. Cullman County
Com’n on Educ., 665 F.Supp. 890 (N.D. Ala. 1987).
Placing pregnant employee on unpaid medical leave
violated pregnancy discrimination act. Carney v. Martin Luther Home, 824 F.2d
643 (8th Cir. 1987).
Minnesota, Oregon laws require parental leave for
both parents; similar Connecticut law applies only to state employees. New York
Times, p. 17, June 18, 1987.
U.S. Supreme Court upholds California law
requiring employers to grant up to four months of unpaid leave to women
disabled by pregnancy or childbirth. California Savings and Loan Assn. v.
Guerra, 107 S.Ct. 683 (1987).
No discrimination to assign pregnant police
officer to light duty status and deny her application for sick leave. Wunning
v. Johnson, 499 N.Y.S.2d 272 (A.D. 1986).
Federal court awards backpay to new mother who
was fired on 70th day of maternity leave; employees with other illnesses
received leniency. Desira v. Consolidated Marketing, 41 FEP (BNA) Cases 494
(N.D. Ga. 1986).
DoJ and a California Fire Dist. sign consent
decree; firefighters" spouses were excluded from health plan. U.S. v.
Fallbrook Fire Prot. Dist., U.S. Dist. Ct. (S.D. Cal. 1986).
Justice Department sues city for failure to give
a female dispatcher sick leave in connection with pregnancy. U.S. v. City of
Charleston, U.S. Dist. Ct. (D. W.Va. 1986).
Justice department sues another California city
over pregnancy benefits. U.S. v. City of Glendale, U.S. Dist. Ct. (C.D. Cal.
1984).
Santa Barbara signs consent decree to compensate
male employees for past losses in insurance benefits for their wives’ pregnancy
expenses. U.S. v. City of Santa Barbara, U.S. Dist. Ct. (C.D. Cal. 2/14/84).
Justice dept. obtains consent decree for male
employees in Orange, California, for lost health insurance benefits. U.S. v.
City of Orange, U.S. Dist. Ct. (C.D. Cal. 1984).
Federal court enjoins city's health benefit plan
for spouses under the 1978 Pregnancy Discrimination Act. U.S. v. City of
Newport Beach, U.S. Dist. Ct. (C.D. Cal. 1983).
Maternity benefits include paid sick leave, but
period of disability must be proven. Police Dept. of City of N.Y. v. N.Y. State
Human Rights Appeal Bd., 409 N.Y.S.2d 408 (A.D. 1978).
Pennsylvania appellate court splits 4-to-3,
holding that the state's Human Relations Act required a public employer to
grant leave to an employee who wanted to extend her maternity leave to
breastfeed her son. Board of Sch. Dir. Fox Chapel Sch. Dist. v. Rossetti, 387
A.2d 957, 36 FEP Cases (BNA) 1765 (Pa.Cmwlth. 1978). {N/R}
Female officer, fired for pregnancy, ordered
reinstated. U.S. v. City of Philadelphia, 573 F.2d 802 (3rd Cir. 1978).
See also: Sex
Discrimination.