No Title VII Claim for Nurse's Assistant Fired While Pregnant

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By Kevin McGowan

Aug. 10 — A certified nursing assistant fired by a rehabilitation center because she couldn't lift more than 30 pounds while pregnant can't pursue a discrimination claim under Title VII of the 1964 Civil Rights Act, a federal district court in Louisiana ruled ( Luke v. CPlace Forest Park SNF, LLC , 2016 BL 256909, M.D. La., No. 13-402, 8/8/16 ).

“It's our intention to appeal,” said Victor Woods, the Addis, La., lawyer who represented Eryon Luke, the fired CNA.

The district court, while expressing sympathy for Luke's plight, ruled she couldn't meet the standards for a pregnancy discrimination claim under Young v. United Parcel Service Inc., 135 S. Ct. 1338, 126 FEP Cases 765 (U.S. 2015).

But the district court didn't apply the correct standards under Young, Woods told Bloomberg BNA Aug. 10.

An appeal could help “further clarify” when pregnant employees who are denied requested accommodations raise triable Title VII discrimination claims, Woods said.

An attorney representing CPlace Forest Park SNF LLC, which operates the rehabilitation center, was unavailable for comment Aug. 10.

Light Duty Denied

Luke, who learned she was pregnant with twins about two months after being hired at the Nottingham Regional Rehab Center, alleged the employer violated Title VII by terminating her rather than granting her light duty.

But Luke can't pursue a pregnancy bias claim because she lacks any evidence the employer offered light duty to non-pregnant employees with similar lifting restrictions, the U.S. District Court for the Middle District of Louisiana said Aug. 8.

In Young, the Supreme Court set out a new test for analyzing failure-to-accommodate claims by pregnant workers alleging unlawful discrimination, the court said.

The pregnant worker's prima facie case under Title VII must include evidence the employer denied the requested accommodation while accommodating non-pregnant employees similar in their ability or inability to work.

If a pregnant employee makes that showing, the employer must articulate a legitimate, nondiscriminatory reason for denying the requested accommodation. The plaintiff then has the burden to show the employer's asserted reason was a pretext for pregnancy bias.

Evidence that an employer accommodated a large number of non-pregnant employees with work restrictions while failing to accommodate pregnant employees will raise a jury issue of pretext, the Supreme Court said in Young.

Luke requested a light-duty assignment after her doctor said she shouldn't be lifting objects weighing more than 30 pounds during her pregnancy.

But the rehabilitation center said every nursing assistant must be able to lift more than 30 pounds and there was no light duty for Luke to perform.

The employer fired Luke in May 2012, when she was seven months pregnant, because it said she wasn't able to meet the job's lifting requirements.

No Prima Facie Case

Luke can't establish a pregnancy discrimination prima facie case because she produced no evidence the rehabilitation center offered light duty to non-pregnant employees with lifting restrictions, Judge Brian A. Jackson wrote.

Luke said she could have continued to work as a CNA while pregnant if the employer had given her increased “lifting assistance and mechanical lifts.”

But she never requested those accommodations, the court said.

When a pregnant employee seeks a specific accommodation, such as light duty in Luke's case, her Title VII discrimination claim is limited to denial of that accommodation, the court said.

Luke presented testimony from other employees that the rehabilitation center gave them lifting assistance while they were pregnant.

But Title VII doesn't require an employer to treat all pregnant employees equally, the court said.

“It simply requires that pregnant women not be treated less favorably than those outside of their protected class,” Jackson wrote.

Gap in Coverage

Luke's case “highlights a prominent gap” in Title VII's pregnancy discrimination coverage, the court said.

Luke's pregnancy was among the approximately 10 percent that are considered “high risk,” the court said. Such unusual pregnancies “deserve to be protected, not merely as a matter of law, but also as a matter of fact,” the court said.

But courts “are generally not in the business of making law” and the court “will not venture to do so here,” Jackson wrote. “Still, one cannot ignore that ‘pregnancy, from a biological standpoint, is unlike any other conditions and has no equal comparator.' ”

“No pregnant woman should, in 2016, be fired for being unable to lift more than 30 pounds,” the court said.

The Equal Employment Opportunity Commission takes the position that some pregnancy-related conditions that impose temporary work restrictions may be covered by the Americans with Disabilities Act.

Luke didn't consider an ADA claim when she sued in 2013, but if she were suing today, she might include a disability discrimination claim, Woods said.

The Kullman Law Firm represented CPlace Forest Park, the rehabilitation center operator.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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