By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 29: The Family Medical Leave Act
This article is the 29th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the several weeks and continuing for the next several weeks, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering are addressed in detail in our newest book: HELPING THE INJURED OR DISABLED MEMBER: A GUIDEBOOK FOR THE WASHINGTON LAW ENFORCEMENT AND FIRE UNION REPRESENTATIVE. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 29th article in these newsletter series provides a discussion concerning the connection and conflict between the Pregnancy Discrimination Act and the Americans with Disability Act. For more information, visit our Premium Website . On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
Under the Pregnancy Discrimination Act (PDA), [111] employers are prohibited from discriminating against employees because of or on the basis of pregnancy, childbirth, or related medical conditions. The PDA also requires that pregnant employees 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.
To establish a “prima facie” case of discrimination under Title VII, a plaintiff may prove her claim either through direct evidence, statistical proof, or the test established by the Supreme Court in McDonnell Douglas Corp. v Green.[112] Pregnant employees have been most successful under the PDA when they can show that the employer took an adverse employment action specifically because of their pregnancy or when they can use the McDonnell Douglas test to demonstrate an inconsistency in the employer’s actions.[113]
Individually, the ADA and the PDA do not specifically grant pregnant employees the right to on-the-job accommodations. However, when the two acts work in conjunction with each other, they may give pregnant employees extensive protection. The ADA requires employers to accommodate their qualified disabled workers and the PDA requires that pregnant employees be treated the same as those employees similarly situated in their ability or inability to work. Therefore, the PDA allows pregnant employees to tag along with many employees covered by the ADA.
The U.S. Supreme Court held that if an employer “accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations,” the employer may have violated the PDA.[114]
This does not mean that any accommodation in any circumstance means that an employer must accommodate pregnant employees – the Court rejected the argument that:
[a]s long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria.[115]
But where the employer often accommodates injured employees, it likely must similarly accommodate pregnant employees.
For example, if an employee has an ADA qualified disability that renders them unable to lift heavy boxes or stand for long periods of time, then the employer would be required to make reasonable accommodations. Once the employer makes the accommodations, it likely will need to make the same accommodation for a pregnant employee who was unable to lift heavy boxes or stand for long periods of time.
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[111] 42 U.S.C. § 2000e(k).
[112] 411 U.S. 792 (1973). The test requires that the plaintiff show: (1) she was a member of a protected class; (2) she was qualified for the position she lost; (3) she suffered an adverse employment action; and (4) that others similarly situated were more favorably treated. The employer then has an opportunity to offer a non-discriminatory reason for its action. Finally, if the employer offers a reason, the employee has an opportunity to show that the offered reason was a pretext.
[113] See Adams v. Nolan, 962 F.2d 791 (1992) (upholding finding in favor of pregnant police officer denied light duty job on grounds pregnancy is non-occupational injury when male officer with non-occupational injury was later given job).
[114] Young v. United Parcel Service, Inc., 575 U.S. ___, 126 FEP Case 765, 775 (2015).
[115] Id. at 771.
