Michelle T. Sullivan
Must Departments Make Accommodations for Pregnant Law Enforcement Officers?
Women, who continue to make up a small percentage of the law enforcement workforce on a nationwide basis, often encounter challenges when they are seeking accommodations at work for pregnancy-related issues. Questions involving light duty accommodations typically arise when complications or the advanced stages of pregnancy create the need for the officer to be placed in a light duty assignment.
Such issues for pregnant women are covered by the Pregnancy Discrimination Act (“PDA”), an amendment to Title VII of the Civil Rights Act of 1964. As such, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which applies to employers with 15 or more employees, as well as state and local governments. Under the law, an employer is required to treat its pregnant employees the same as it treats other employees who suffer restrictions as the result of non-pregnancy related injuries or medical conditions.
Consider the following hypothetical: female officer, Jane, learns that she is expecting a baby. Her doctor advises her that she will not be permitted to work on road patrol at the beginning of her third trimester because of the increased risk of injury to Jane and her unborn child if she is involved in a physical altercation. Upon learning this information, Jane immediately seeks out her chief to discuss the possibility of a light duty assignment on station when she reaches her third trimester. The chief advises her that the department has no light duty to offer her, and she will have to begin using sick leave or Family Medical Leave when she is no longer able to work unrestricted duty on road patrol.
If the department consistently denies light duty to all officers, regardless of the cause of the need for restricted duties, a denial of light duty work to this pregnant officer is not a violation of the officer’s rights under the PDA.
However, assume the department previously allowed light duty assignments for other officers who were suffered injuries or other illnesses that prevented them from working full, unrestricted duty. In this situation, a denial of light duty to the pregnant officer could constitute a violation of the PDA because the department would be treating the pregnant officer different than other officers with non-pregnancy related disabilities.
On the other hand, many small departments, who have a limited capacity for light duty work, may provide light duty assignments only to officers injured in the line of duty, but not for other employees who have work restrictions at the result of non-work related injuries or illnesses. Does an employer violate the PDA if it denies light duty work to the pregnant officer in this situation? The Sixth Circuit Court of Appeals addressed this question in Reeves v. Swift Transportation Company, Inc., 446 F.3d 637 (6th Cir. 2006). In that case, the employee, a truck driver, was discharged when she was no longer able to perform heavy lifting and required light duty in the late stages of her pregnancy. The employer had a policy of only offering light duty to employees injured on the job.
The court held that the employee’s discharge was for legitimate, non-discriminatory reasons, recognizing that truck drivers must be able to lift heavy weight. The fact that the employer allowed light duty for employees with work-related injuries did not trigger application of the PDA. Citing other decisions on this issue, the court noted that the plaintiff was not making a claim of discrimination, but rather, a claim for preferential treatment. Id. at p. 642. “As long as pregnant employees are treated the same as other employees injured off duty, the PDA does not entitle pregnant employees with non-work related infirmities to be treated the same under [the employer’s] light-duty policy as employees with occupational injuries.” Id. (quoting Urbano v. Cont’l Airlines, Inc., 138 F.3d 204, 208 (5th Cir., 1998)).
Just as the PDA requires employers to treat pregnant employees the same as other disabled employees, employers cannot force pregnant employees from their assignments or prematurely force such employees into restricted duty assignments out of concern of injury to the officer or her unborn child. In other words, it is unlawful for an employer to remove a pregnant employee from her assignment in anticipation of limitations she may have or based on assumptions or preconceived notions of limitations her pregnancy may cause. See generally, UAW v. Johnson Controls, 499 U.S. 187 (1991).
In most cases, those who believe they have been the subject of discrimination under the PDA must look to federal law for recourse. However, some collective bargaining agreements address light duty and may afford the affected employee a remedy if that light duty has been wrongfully withheld. Anyone having questions as to whether these rights have been violated should contact their OPBA representative for the appropriate guidance.