Double whammy for employer who won't accommodate pregnancy -- but will the EEOC's case survive?

This case may have some problems, but it's a good illustration of why employers need to be careful, post-Young v. UPS. Thanks very much to Bill Goren for sending it my way.Pregnant_woman

The Equal Employment Opportunity Commission filed suit last week in a federal court in Pennsylvania against Landis Communities (retirement communities), claiming that Landis unlawfully refused to accommodate the pregnancy and disability of charge nurse/supervisor Amy Potts.

According to the lawsuit, Ms. Potts had an "incompetent cervix." In layman's terms, that means that her cervix (the "neck" at the bottom of the uterus) was weak, meaning that if she was pregnant, she could have trouble "holding the baby in" until it was really ready to be born. That's probably about all I want to say about that, but for more information, go here.

Ms. Potts became pregnant, and had surgery for her condition, and in April 2010 came back to work with a 25-pound lifting restriction. According to the EEOC, Landis forced her to take a medical leave of absence, saying it could not accommodate her. Meanwhile, Landis did make accommodations for lifting restrictions of other, "non-pregnant," employees. (Presumably, employees with on-the-job injuries, and ADA disabilities.) Then, in April 2011, Ms. Potts applied for a charge nurse/supervisor position (her old job?), and was told she'd have to prove that she didn't have the lifting restriction any more. She was also told that she was considered "terminated" as of March 31, 2011.

Before I get into what I think is wrong with this case, let me note three important points for employers trying to act preventively:

1) The EEOC is serious about this "pregnancy accommodation" stuff.

2) The Americans with Disabilities Act Amendments Act was already in effect when all of this went down. Under the ADAAA's greatly expanded definition of "disability," arguably a medical problem that might prevent a woman from being able to carry her baby to term would qualify. The EEOC says this condition "substantially limited" Ms. Potts in the major life activities of lifting and reproduction. The EEOC may be right.

3)  Refusing to consider Ms. Potts for reemployment unless she presented a doctor's note saying her lifting restriction had been . . . uh . . . lifted, arguably violates the ADA's restrictions on pre-employment medical inquiries. I think the EEOC is right about that, too. The better way would have been to make a conditional offer of employment, and then get the status on the lifting restriction during the post-offer medical examination.

Despite the above, I think the EEOC's case might have problems. Here they are, as I see them:

1) This all happened in 2010 and 2011, three years before the EEOC took the position that failure to accommodate pregnancy was a form of pregnancy discrimination. In Young v. UPS, the Supreme Court criticized the EEOC for dramatically changing its position on this very issue (in 2014!) without providing an adequate explanation for the change. Arguably, this means that the EEOC shouldn't be able to sue an employer in 2015 for failure to accommodate pregnancy in 2010 or 2011.

2) The lawsuit does not allege that Ms. Potts filed a timely charge of discrimination. That's weird, and makes me think she didn't. (The "cause" determination was not issued until April 2015.)

3) The lawsuit does not allege when Ms. Potts filed a charge of discrimination. That also makes me think she didn't timely file it. In Pennsylvania, she'd have 300 days from the date of the last discriminatory act. And what was "the last discriminatory act"? The date that the employer told her she'd have to take a leave of absence (April 2010), or a year later, when she was told she couldn't be rehired until she proved that her 25-pound lifting restriction was removed?

Reading between the lines, here's what I think may have happened: Ms. Potts was put on a medical leave of absence in April 2010, because the employer could not or would not accommodate her 25-pound lifting restriction. At the time, that might have been a violation of the ADA but not of Title VII.

The baby would have been born nine months or less after April 2010 (no later than January 2011). Ms. Potts stayed out on medical leave past the one-year point (April 2011) so she could enjoy the new baby, and only then started reapplying for positions. The company told her she needed to present proof that she didn't have the 25-pound lifting restriction any more, and also told her that she didn't get automatic "placement priority" any more because she'd been officially terminated as of March 31, 2011.

Then somebody (either the EEOC or Ms. Potts) got the idea that this would be a good test case under Young v. UPS.

I am so cynical!

Image Credit: From Wikimedia Commons.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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