Employers should always be careful when weighing pregnancy accommodation requests, even when they’re following facially neutral policies — ones that don’t appear to be discriminatory on their face. The employer in Legg v. Ulster County provided nondiscriminatory reasons for its failure to accommodate a pregnant worker, yet the U.S. Court of Appeals for the Second Circuit ruled in favor of the employee.

HIGH-RISK POLICY

The employee in the case, a corrections officer at the Ulster County jail, had a high-risk pregnancy and was instructed by her doctor to work light duty. Her doctor’s note stated that she was able to work but couldn’t have direct contact with inmates. The sheriff denied her request for an accommodation and the employee was informed that light duty assignments were given at the sheriff’s discretion for work-related illnesses or injuries only.

The employee was given the option of being re-evaluated to return to work full duty or using her accrued time and filing for disability benefits. However, a lieutenant reached out to her and said he would assign her to light duty positions if she obtained a new doctor’s note that had no restrictions.

She obtained the note and was assigned to light duty tasks for about one month. Thereafter, she was required to work with inmates and when seven months pregnant she was bumped by an inmate during a fight. After this incident, the employee didn’t return to work until after she gave birth.

When she returned to work, the employee brought an action against the county and sheriff alleging that the denial of her request for an accommodation was pregnancy discrimination. The trial court granted the defendant’s motion for judgment as a matter of law, finding that the policy couldn’t be discriminatory because it was facially neutral with respect to pregnancy. The Second Circuit vacated the judgment and remanded for a new trial.

SHIFTING THE BURDEN

The U.S. Supreme Court decision in Young v. United Parcel Service, Inc. provides a test to establish a pregnancy discrimination failure to accommodate claim. Under this test, a plaintiff must show that:

• She belonged to a protected class,
• She sought an accommodation,
• The employer didn’t accommodate her, and
• The employer did accommodate others similar in this ability or inability to work.

The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its policy. If articulated, the employee must then establish that the employer’s justification was pretext for discrimination. The employee can do so by presenting sufficient evidence that the employer’s policies impose a significant burden on pregnant workers and that the employer’s legitimate, nondiscriminatory reasons aren’t sufficiently strong to justify the burden. A genuine issue of fact as to the existence of a significant burden may be created if the employee can show that the employer accommodated a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.

The employee in Legg established a prima facie case because she requested a light duty accommodation and the county didn’t accommodate her, but provided light duty accommodations to other employees who were unable to perform non–light duty tasks as a result of on-the-job injuries. The county claimed a legitimate and nondiscriminatory reason for distinguishing between on-the-job and off-the-job injuries when providing light duty work. It cited a state law that required municipalities to pay corrections officers injured on the job, but didn’t require pay for those who were injured off the job.

APPEALS COURT WEIGHS IN

The appeals court agreed that compliance with the state workers’ compensation law was a neutral reason for the employer’s distinction in accommodations. Therefore, the burden shifted back to the employee to show pretext.

But the court also found that the employee had presented sufficient evidence to support a pregnancy discrimination claim under the Young standard. It determined that, by denying light duty accommodations to pregnant women, the county imposed a significant burden on pregnant employees. Furthermore, the employee could demonstrate that the county failed to accommodate 100% of its pregnant employees.

The county argued that pregnant workers weren’t significantly burdened because only 176 corrections officers were affected. However, the court held that, in determining the burden on pregnant employees, the question isn’t how many were denied accommodations in relation to all employees, but how many pregnant employees were denied accommodations in relation to all pregnant employees. The court acknowledged that there were costs associated with accommodating pregnant workers. But the court also restated Young’s warning that “cost alone is generally not a legitimate basis for refusing to accommodate pregnant employees on the same basis as other employees similar in their ability or inability to work.”

NEUTRAL NO LONGER

This case is a reminder that employers may no longer rely on facially neutral policies to avoid providing accommodations to qualified employees. Ensure that your organization’s seemingly neutral policies don’t significantly burden one class of employees.