TOP TIP: May Light Duty Be Limited to Occupational Injuries?
Many employers would like to have a policy that provides light duty only to those workers who suffer on-the-job injuries, but not others, like pregnant employees. The Equal Employment Opportunity Commission, however, took the position that the Supreme Court’s 2015 ruling in Young v. UPS necessarily required employers with occupational light duty policies to extend light duty to pregnant employees. But, according to the U.S. Court of Appeals for the Seventh Circuit, Young is not so categorical and an employer may be able to establish an occupational light-duty policy – under the right circumstances and with caveats.
Factual Background. In EEOC v. Wal-Mart Stores East, L.P., the company had a policy under which it offered light duty only to workers who were injured on the job. The EEOC sued, arguing that this policy violated Title VII, as amended by the Pregnancy Discrimination Act (PDA), which mandates 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 but similar in their ability or inability to work.”
The Court’s Opinion. The U.S. Court of Appeals for the Seventh Circuit turned to the Supreme Court’s ruling in Young, in which the Supreme Court applied the burden-shifting framework of McDonnell Douglas to the PDA. Under this framework, a plaintiff makes out a prima facie case of pregnancy discrimination by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its denial of the accommodation. The burden then shifts back to the plaintiff to show the employer’s policies impose a significant burden on pregnant workers, and that the employer’s reasons are insufficient to justify the burden, giving rise to an inference of discrimination. As the Supreme Court noted, this showing may be made where there is evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.
Under McDonnell Douglas, the Seventh Circuit first found that the EEOC had made a prima facie case. It then found that the employer had articulated a legitimate, non-discriminatory reason for its occupational light-duty policy: to implement a worker’s compensation program that benefits the company’s employees while limiting the company’s legal exposure (by enabling employees to receive full wages rather than the reduced wages under the workers’ compensation system) and costs of hiring people to replace injured workers. The Seventh Circuit then reviewed whether the EEOC had offered sufficient evidence of pretext, and found that that it had not. In the Young case, there was evidence that the employer provided light duty under various policies to employees beyond just those injured at work, but not to pregnant employees. Thus, pregnant employees in that case were not being treated like those who were similar in their (in)ability to work. In contrast, here the employer limited light duty only to those suffering occupational injuries, meaning that pregnant employees were being treated the same as all other employees incurring non-occupational injuries.
Lessons for Employers. This case provides some guidance for employers who may wish to implement occupational light-duty policies that do not include accommodations for pregnancy. But such policies must be carefully considered and applied in order to avoid violating the PDA. Among the considerations include:
- The policy must be based on a legitimate non discriminatory reason, such as minimizing liability for lost wages under a state workers’ compensation system.
- The policy must be strictly limited to occupational injuries and illnesses. If the employer provides light duty for other non-occupational medical needs, it will not be able to exclude pregnancy-related light duty.
- Moreover, it may be necessary to limit light duty (including reduced schedules) for other non-occupational reasons as well. The Seventh Circuit noted a possible argument (forfeited by the EEOC) that if a reduced schedule was provided to other employees who were neither pregnant nor injured on the job (such as to attend school), that may be evidence of a significant burden on pregnant workers and could undermine the stated nondiscriminatory reason.
- In addition, this decision is effective only in those states covered by the Seventh Circuit (i.e. Illinois, Indiana and Wisconsin), although it may be persuasive authority in other jurisdictions that have not yet addressed this issue.
- Moreover, employers should understand that the EEOC has taken the position that employers cannot limit light duty to occupational injuries only, because that discriminates against individuals with non-work-related disabilities in violation of the ADA – a position with which courts have not always agreed. Regardless of any policy, moreover, employers must keep in mind their obligation to provide reasonable accommodations to employees with disabilities.
Employers should consult with counsel before implementing such policies to ensure that any state-specific considerations are taken into account.