Pregnancy Discrimination Claim Based on Denial of Light-Duty Work Moves Forward

Takeaway: Employers must ensure that pregnant employees are treated the same for all employment-related purposes “as other persons not so affected but similar in their ability or inability to work,” as required by the Pregnancy Discrimination Act. The employer’s failure to timely accommodate a pregnant employee with light-duty work as it would accommodate other employees unable to work due to work-related injuries created a genuine dispute regarding whether it denied her requests for legitimate, nondiscriminatory reasons.

A plaintiff made out a “prima facie” case of pregnancy discrimination based on her employer’s denial of her light-duty requests, an appellate court held July 3, vacating a district court’s grant of summary judgment and sending the claims back for further consideration. The lower court was also instructed to consider an intervening U.S. Supreme Court ruling in determining whether the plaintiff successfully argued a prima facie case for an adverse employment action.

While the case was pending, the high court held in another action that an employee doesn’t have to show that an asserted adverse employment action was a “serious and tangible” employment-related harm, but only that it caused the employee to suffer “some harm” to a term or condition of employment. This holding runs contrary to the appellate court’s precedent, which the district court had relied upon.

The plaintiff sued her employer, a state probation and parole board, for pregnancy discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act (PDA).

The employee was an alcohol and drugs agent, working with drug and alcohol offenders on parole. Her job required her to be able to perform various physical functions including running to catch escaping offenders, restraining offenders during arrests, and moving offenders to take them into custody.

She was diagnosed with multiple sclerosis in late 2019 and learned she was pregnant in early 2020. In March 2020, she asked the board to accommodate her inability to perform certain tasks due to her pregnancy by assigning her to light-duty work. Her requests were denied by the board, which said that light duty may only be approved for a parole board employee suffering a work-related injury.

The employee was told to speak with the board’s Family and Medical Leave Act (FMLA) coordinator to discuss taking unpaid leave under the FMLA. She began taking leave March 26, using a combination of unpaid FMLA leave and vacation time. A month later, she filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging discrimination based on sex, pregnancy, and disability, as well as retaliation.

On May 14, her supervisor emailed her to say the board had the ability to accommodate her request for modified duty based on her physician’s restrictions. The board provided her with a modified duty position description. The employee immediately began her light-duty assignment and the board reinstated the leave she had taken and reimbursed her for salary lost during the period of unpaid leave.

Ten days later, the employee asked for another accommodation: to be allowed to work from home due to her high-risk pregnancy and risk of workplace exposure to COVID-19 or to be provided with personal protective equipment (PPE) including a mask, face shield, and gloves. The board refused her request to work from home but provided her with the requested PPE. The employee then filed a second charge with the EEOC, reiterating her initial claims.

The employee resigned Sept. 23, 2020, stating her belief that she had been constructively discharged. After resigning, she filed a third charge with the EEOC, reiterating her earlier claims. The EEOC issued a right-to-sue letter for all three charges, and the employee sued the board. The board moved for summary judgment and the district court granted its motion.

On appeal, the 3rd U.S. Circuit Court of Appeals evaluated the plaintiff’s discrimination and retaliation claims. It began by noting that, while this appeal was pending, the Supreme Court held in Muldrow v. City of St. Louis that “contrary to our precedent, an employee need not demonstrate that the asserted adverse employment action was a ‘serious and tangible’ employment-related harm.”

In Muldrow, the court rejected that the harm must be “serious or significant” and instead “explained that an adverse employment action means simply that the employee suffered ‘some harm’ to a term or condition of employment—in other words, that the employer treated the employee ‘worse’ because of a protected characteristic,” the appellate court said.

The district court had decided, relying on 3rd Circuit precedent, that the board’s denials of the plaintiff’s accommodation requests did not constitute an adverse employment action because she had failed to allege facts reflecting a “significant” employment-related harm. Although the court concluded she had raised “many grievances”—forced leave and corresponding temporary loss of pay and benefits, uncertainty, a less flexible work schedule, and an unsafe work environment during her modified duty assignment—they did “not rise to the level of an adverse employment action.”

“Because Muldrow made clear that adverse employment action need not be serious, we will remand so that the district court can consider … whether the plaintiff has asserted harms sufficient to establish ‘some’ employment-related harm for her prima facia case under Muldrow,” the appellate court said.

Turning to the plaintiff’s claims of failure to accommodate, the 3rd Circuit found she could not make out a prima facie case of discrimination based on the board’s denial of her request to work from home because the board provided her with PPE—“the accommodation she requested (though did not prefer).”

She did, however, make out a prima facie case of discrimination based on the board’s denial of her requests for light duty, the court found. The board repeatedly denied plaintiff’s light-duty requests between March and May 2020, the court noted. Although it ultimately accommodated the employee by granting her light duty two months after she requested it, the PDA does not make an exception for employers who grant an accommodation after significant time has passed since their denial, the court held.

“We, therefore, decline to read that exception into the PDA as doing so would eviscerate the PDA’s purpose: Pregnancy is temporary, so if employers could deny pregnant workers accommodation for a period of months but escape liability by eventually relenting, the statute would offer very little protection,” the appellate court stated.

The court noted evidence showing the board denied the plaintiff’s requested accommodation as a matter of policy solely because her inability was not caused by a work-related injury. Further, the plaintiff offered evidence that the board reversed itself and provided her with light duty because of her disability, not because of her pregnancy. “This sequence of events, drawing all reasonable inferences in favor of [the plaintiff], can create a genuine dispute that the board denied [her] light duty solely ‘based on a discriminatory criterion illegal under Title VII’ and would have provided light duty to accommodate [her] inabilities so long as they were caused by work-related injuries or possible disability, rather than pregnancy,” the court found, remanding the failure-to-accommodate claims for further consideration.

Finding no evidence that the plaintiff’s working conditions were so intolerable that they would have forced a reasonable person to quit, the appeals court affirmed the lower court’s disposition of the constructive discharge claim. Similarly, the court affirmed the lower court’s grant of summary judgment on the retaliation claim in light of the lack of evidence that the board took any actions against the plaintiff as retaliation for her EEOC charges. In fact, the board changed its position and granted the plaintiff light duty soon after she filed her first charge, the court noted.

Thus, the 3rd Circuit vacated and remanded for further analysis the plaintiff’s adverse employment theory and failure-to-accommodate theory, and affirmed the district court’s decisions on her constructive discharge and retaliation claims.

Peifer v. Commonwealth of Pennsylvania, Board of Probation and Parole, 3rd Cir., No. 23-1081 (July 3, 2024).

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.