In 2015, when the U.S. Supreme Court ruled in Young v. UPS, the Supreme Court created a framework for determining when employers violate the Pregnancy Discrimination Act (“PDA”) by not providing light duty or other accommodations to pregnant workers. Now, seven years later, courts are still grappling with the Supreme Court’s framework.
One such example just came out of the Seventh Circuit of Appeals, where the court found that Walmart’s policy of providing temporary light duty to employees injured on the job, but not to similarly restricted pregnant employees, did not violate the Pregnancy Discrimination Act. The case is Equal Employment Opportunity Commission v. Wal-Mart Stores East, L.P.
On August 16, 2022, the Seventh Circuit Court of Appeals upheld Walmart’s “Temporary Alternate Duty” Policy (“TAD Policy”) that offers light duty only to those workers injured on the job.
The case originated at a Walmart distribution center in Wisconsin. According to court filings, employees at the distribution center with lifting restrictions caused by a work injury could be offered temporary light duty work while they healed. However, Walmart did not offer light duty to workers injured off the job or to pregnant workers. Instead, it required pregnant workers with lifting or other physical restrictions to go on leave.
In September 2018, the EEOC filed a class action lawsuit against Walmart, claiming that the denial of light duty to pregnant women violated the Civil Rights Act of 1964 and the PDA.
According to the EEOC, the PDA, which amended Title VII, forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. However, under the TAD Policy, Walmart offered light duty to workers injured on the job, but not to pregnant workers or workers injured off the job, under the TAD Policy or otherwise.
During its review, the court found that Walmart established a legitimate, non-discriminatory reason for the TAD Policy, and excluding pregnant employees and all other workers was not discriminatory. Moreover, the court rejected the position that pregnant workers are entitled to “most-favored-nation” status.
Employers that offer light duty to employees with job-related injuries may violate the PDA when they also provide light duty to other groups of workers, but not to pregnant employees. For example, in Young v. UPS, besides providing light duty to workers injured on the job, UPS offered light duty assignments to drivers who lost necessary certifications. There was also evidence that UPS offered light duty to workers whose injuries did not occur on the job. Said another way, “in short … [light duty was used to] to accommodate … every condition except pregnancy,” the Seventh Circuit emphasized.
Conversely, the EEOC’s claims in the Walmart case discussed above failed because the EEOC did not show that non-pregnant employees injured off the job who were “similar to pregnant women in their ability or inability to work … benefited from light duty”.
However, before running off to implement your own TAD Policy, please remember that light duty generally refers to a reduction in work, removal of an essential function or a temporary reassignment. But employers can provide a variety of adjustments to help a pregnant employee at work, such as ergonomic office furniture, a shift change, rest or bathroom breaks, eliminating marginal job functions, or allowing work from home, the guidance suggested.
Additionally, employers should keep in mind that under the Americans with Disabilities Act, if a pregnant employee has a pregnancy-related medical condition that meets the ADA’s definition of disability, the employer must provide a reasonable accommodation unless doing do would involve significant difficulty or expense.
Want even more advice, given just to you? Sign Up for an annual membership today and receive unlimited advice from SPHR Certified pros & our “Ask An Attorney” blog found only with our Annual Membership. Learn More Here
About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://