By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 30: Pregnancy Discrimination Rights in the “Hazardous Workplace”
This article is the 30th 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. If you would like to confirm if your specific situation might be viable for building a case, consult with a discrimination lawyer to be certain.
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 30th article in these newsletter series provides a discussion how the rights under the Pregnancy Discrimination Act are impacted by a perceived “hazardous workplace.”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.
An employer is not required to accommodate a pregnant employee because the employee wants to protect her unborn child. While the U.S. Supreme Court has held that pregnant employees have the right to work in a hazardous environment,[1] there is no inverse rule requiring employers to provide on-the-job accommodations to employees who wish not to work in a hazardous environment. Furthermore, employees who have been denied requested accommodations to protect their unborn children have not been successful in court under the PDA.[2]
The leading case on this subject is Armstrong v. Flowers Hospital, Inc.[3] In Armstrong, a nurse brought a discrimination claim under the PDA because her employer refused to reassign her after she voiced concerns about treating an HIV-positive patient. The nurse, who had been concerned that caring for an HIV-positive patient would put her fetus at risk, claimed that the hospital’s decision was unfairly applied to her. She also claimed, based on the U.S. Supreme Court’s holding in Johnson Controls,[4] that the hospital’s policy resulted in a disparate impact because it created a “difficult choice” for pregnant employees. The choice, she argued, between keeping her job or protecting her child, was prohibited by the U.S. Supreme Court.
The Eleventh Circuit rejected this argument. Johnson Controls, it stated, stood for the right of a pregnant employee, not the employer, to choose whether or not the employee continued in a particular job. The court further pointed out the limitations of pregnant employees’ rights and the reasons why an employer has no duty to make alternative work available to pregnant employees: The PDA contains no language that addresses “the right of a pregnant employee, fully able to work, to receive benefits that are different from, and arguably superior to, the benefits available to other employees.”[5]
Furthermore, “employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees. Title VII simply does not require employers to treat their employees with kindness.”[6]
Finally, a pregnant employee who finds herself facing the possibility of working in a potentially hazardous environment has three alternatives: continue working, seek a work situation with less stringent requirements, or leave the workforce. “In some cases, these alternatives may, indeed, present a difficult choice. But it is a choice that each woman must make.”[7]
The court also dismissed the disparate treatment claim because the nurse had been unable to provide evidence that the hospital was treating her differently because of her pregnancy.
Although the case law does not lend support to a woman’s desire to protect her fetus, there may be alternative methods of obtaining the desired outcome. One proposal holds that the best way to gain accommodation may be to demonstrate that the workplace hazard in question is harmful to the health of the pregnant woman herself.[8] If the ADA requires accommodations for individuals with disabilities who cannot perform physical labor or whose disabilities make them sensitive to toxins or who require frequent doctors’ visits, then pregnant women who are similar in their ability to work and who require similar relief should, under the PDA, be entitled to the same accommodations.
In the next article in this series, we’ll shift subjects and move on to the rights of injured public safety employees under the workers compensation system.
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[1] Auto Workers v. Johnson Controls, 491 U.S. 197 (1991). (Finding PDA violation where employer, fearful pregnant employee’s unborn children will be harmed by exposure to toxins, banned fertile women from certain jobs).
[2] Calloway, Deborah. Accommodating Pregnancy in the Workplace, 25 Stetson L. Rev. 1, 36 (1995).
[3] 33 F.3d 1308 (11th Cir. 1994).
[4] Note 78, supra.
[5] Armstrong, 33 F.3d at 1316.
[6] Id. at 1317.
[7] Id. at 1315.
[8] Calloway, Deborah, Accommodating Pregnancy in the Workplace, 25 Stetson L. Rev. 1, 38 (1995).
