Healthcare Matters

A Complimentary Newsletter From:

Barmak and Associates, LLC

Managing Liability for Long Term Care and Healthcare Providers

Volume 17, Issue 8 ADVERTISEMENT August 2016

In This Issue

Pregnancy Discrimination in the Nursing Home Workplace

Gender Discrimination: Wages

David Barmak, Esq.

Gerald V. Burke, M.D., Esq.

Jo Ann Halberstadter, Esq.

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Luke v. CPlace Forest Park SNF, LLC

Pregnancy Discrimination in the Nursing Home Workplace

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.

For any inquires regarding this article, please contact David S. Barmak, Esq. at info@barmak.com or by telephone at (609) 454-5351.

Gender Discrimination: Wages

By: David S. Barmak, Esq.

The United States Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has issued a Final Rule that took effect on August 15, 2016 (the "Final Rule"), with regard to nondiscrimination in employment on the basis of sex.

I would have thought this to be unnecessary, considering Title VII of the Civil Rights Act of 1964 and subsequent laws and regulations requiring equality between the sexes; however, there still are gender gaps in compensation and other workplace benefits.

Why? According to various sources, much of the pay gap between the genders can be explained by the fact that women often work in lower-paying fields that pay less than the fields that men work in. That fact may be misleading because the even deeper question is why do women tend towards lower-paying fields. A common perspective is that women are "pushed" into these lower-paying fields, perhaps even from an early age when girls are directed into socially acceptable behavior that may not necessarily eventually lead to the same fields as boys.

According to a recent Glassdoor report, women in the United States make 76 cents on average for every dollar a man earns. Federal data puts that gender earning gap at 78 cents. Glassdoor's own study concluded that once differences between men and women's level of education, occupations, experience, job title and location are considered, the gender earning gap drops to women earning 94.6 cents for every dollar a men earn. Perhaps this 5 percent gap, after adjustment, is due to workplace bias against women. If so, the United States Department of Labor's Office of Federal Contract Compliance Programs' Final Rule mandating equality in the workplace between the sexes is necessary, if only as another legal prohibition and reminder in a long line of similar legislative efforts to balance a fundamental difference engendered early in life between women and men.

For any inquires regarding this article, please contact David S. Barmak, Esq. at info@barmak.com or by telephone at (609) 454-5351.

Barmak and Associates, LLC

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This newsletter has been prepared by Barmak and Associates, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

For more information, please contact:

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