By: David S. Barmak, Esq.
The Editorial
A Louisiana federal district court issued a controversial ruling last week in the matter of Luke v. CPlace Forest Park SNF, LLC. The Court held that a certified nursing assistant (CNA), fired by a rehabilitation center because she could not lift more than 30 pounds while pregnant, cannot pursue a pregnancy discrimination claim under Title VII of the 1964 Civil Rights Act.
The Court's Ruling
The Court held that the CNA could not meet established legal standards necessary to support a pregnancy discrimination claim. She was fired, while seven months pregnant, allegedly for her inability to meet lifting requirements for CNAs. The employer's position at the time was that there was no light duty work available, for either Luke or others. The Court reasoned that had Luke been able to prove that her employer had offered light duty to non-pregnant employees with similar lifting restrictions, she would have been better situated to argue that she was not treated similarly solely because she was pregnant.
Based upon the facts alleged and proven, the Court was unfortunately left with no other choice than to conclude that the employer treated Luke the same as her colleagues, and therefore pregnancy was not a factor in the employment determination.
The Law
I know, from years of litigation and counseling nursing homes in employment situations, that there is often more to a story than that which meets the eye, or, in this case, presented in court. Unfortunately, sometimes, as appears here, that may include whether or not an employee knows and can then insist upon her legal rights. As best as can be ascertained from the information available, it appears that Luke did not ask for reasonable workplace accommodations and instead relied on her request for non-existent light duty. A pregnant worker's discrimination claim under Title VII must include evidence that an employer denied requested accommodation while the employer accommodates non-pregnant employees who share the employee's inability to work.
The challenge is to understand that the law requires that an employer not treat a pregnant employee less favorably than those outside the protected class of pregnant workers. The legal standard does not work in reverse; i.e., the law does not require that pregnant women be treated more favorably than those outside the protected class.
We may never really know why the nursing home in this matter did not proactively offer reasonable accommodation to Luke. There may have been other reasons, good, bad and ugly, for not having done so. What is clear from the Court's fact finding and decision is that the employer appears to have been within its legal rights to have not done so.
My Experience: Nursing Home Management Is Typically Supportive
The non-binding comments by the Court - that an employer should treat a pregnant employee favorably in support of continued work- are right on; however, this is an issue that rests with federal and state legislatures, not the courts.
I'm very surprised by the defendant nursing home's decision to terminate the employment. Throughout my experience over the years, no nursing home client has ever terminated employment because of pregnancy. Never. Perhaps my client base differs from the norm. Perhaps not. It certainly differs from this defendant's perspective. My nursing home clients have always bent over backwards to support and protect a pregnant employee's ability to work for as long as the employee wants to work, and can safely work - from the resident, co-worker and employee's perspective. If anything, the only time pregnancy has become an employment issue is when an employer has determined that, but for the pregnancy, the employee would have been counseled or reprimanded, and out of concern about potential retaliatory allegations, chooses to not pursue standard procedures. In these situations, pregnancy has enabled the employee to gain advantageous treatment over her colleagues.
Looking Forward
If our society is going to "legislate" advantageous treatment for pregnant employees who can and want to continue with their employment, federal and state legislatures should mandate that employer's have the burden to provide reasonable workplace accommodation, whether the employee asks or not. Perhaps that would have assisted Luke in keeping her job with an employer who apparently chose to limit its actions to the literal letter of the law.
Shared Hope
Hopefully, notwithstanding the strain of years of litigation, Luke is gainfully employed and enjoying motherhood.
