September 12 Tip of the Week

“PDA: What Constitutes Discrimination”

The world is full of acronyms and, as human resources professionals, we have more than our fair share of them.  Some acronyms, like “PDA” refer to certain activities, such as public displays of affection – an issue that must be addressed in many workplaces.  Other acronyms – far too many for our liking – refer to various laws and regulations that impact the employment relationship.  “PDA” is also shorthand for the Pregnancy Discrimination Act.  This act governs how employers must treat pregnant employees and raises a number of compliance questions.  Pregnancy is a medical condition and, under the law, pregnant employees must be treated the same as other employees who have medical conditions that impact their ability to perform the essential functions of their job.  Many employers, when faced with requests for accommodations for workers who have medical conditions that limit their ability to perform their work tasks find it difficult to manage these accommodations.  Well-written and comprehensive policies, however, provide the greatest protection to workers and to employers with respect to these requests.  A recent Seventh Circuit Court of Appeals decision, Equal Employment Opportunity Commission v. Wal-Mart Stores East, L.P., No. 21-1690 (7th Cir. 2022), demonstrates the importance of such a policy. 

            In that case, the EEOC sued Wal-Mart East, a distribution center, alleging that its Temporary Alternate Duty policy violated the both the Pregnancy Discrimination Act and Title VII of the Civil Rights Act.  Under its Temporary Alternate Duty policy, Wal-Mart accommodated work restrictions placed on employees who were injured on the job by granting them light duty for 90 days while they were recovering from those injuries.  Wal-Mart limited this light duty accommodation to only those employees who were injured at work and did not extend it to employees who were injured outside of work, who were pregnant, or who suffered from other medical conditions that impacted the employee’s ability to perform the physical requirements of their job.  The EEOC, in filing suit against Wal-Mart, alleged that this policy had a disparate impact on pregnant women and, thus, discriminated against them in violation of the law. 

            In rejecting the EEOC’s claim of discrimination on the basis of disparate impact, the court applied the three-step burden shifting test applicable to discrimination cases.  Under that test, the plaintiff was required to make a prima facie showing that she was a member of a protected class, that she requested an accommodation, and that her request was denied while other employees were given accommodations.  The court noted that the burden on the plaintiff to meet the first step of the three-step process under which discrimination cases are analyzed was not difficult.  Once the initial showing was made, it was then up to the employer to show a legitimate, nondiscriminatory business reason for the disparate treatment.  In this case, Wal-Mart stated that its policy was to only accommodate individuals who were injured on the job with light duty and that the reason for limiting accommodations to that group of employees was to increase the morale of injured workers, to decrease the costs of workplace injuries, and to otherwise minimize the impact of a workplace injury on the worker.  The court found that Wal-Mart’s justification for its Temporary Alternate Duty policy was not discriminatory and, therefore, the EEOC’s allegation that the policy unlawfully discriminated against pregnant women was unsupported by the facts. 

In an effort to overcome this finding, the EEOC alleged in the third step of the burden shifting test that the policy in question placed a significant hardship on pregnant women (i.e., the need to make a choice between their job and the employee’s health and the health of their baby) and that the explanation offered by Wal-Mart for the disparate treatment was not strong enough to justify the increased burden on pregnant women.  Therefore, the EEOC argued the court should find in favor of the plaintiff and declare Wal-Mart’s policy to be an unlawful example of intentional discrimination. The court rejected the EEOC’s attempt to overcome Wal-Mart’s business justification for its Temporary Alternate Duty policy, stating that EEOC failed to show that other employees similarly situated to pregnant employees were accommodated under the policy.  Because Wal-Mart’s policy specifically limited its accommodations only to individuals who were injured at work and the EEOC was unable to show any exceptions to that rule, the court found in favor of Wal-Mart and upheld the lower court’s grant of summary judgment. 

What lesson can we learn from this court’s decision?  First, it demonstrates with great clarity the need for clear and comprehensive policies.  Second, it underscores the need to treat similarly situated employees equally and to not make exceptions under various policies.  The danger in making an exception to a policy, such as the one in question in the Wal-Mart case, is that an employer then takes the risk that the exception becomes the rule and the policy becomes unenforceable.  Third, it confirms an employer’s right to treat different classes of employees differently, as long as the classifications are based on objective reasons that are business-related and reasonable.  MyHRcounsel, through its employee handbook service, can assist you in drafting legally compliant and comprehensive policies.  We can also assist you in navigating the treacherous area of workplace accommodations and other employee issues.