Walmart Can’t Shake Pregnant Workers’ Nationwide Bias Claims (1)

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By Patrick Dorrian

A pair of Walmart employees who allege the retailer discriminated against them and other female workers across the country based on pregnancy can continue to pursue their class job bias claims, a federal judge ruled.

In a ruling that may be instructive for other large, multistate businesses, Judge Michael J. Reagan March 29 rejected Walmart’s contention that it couldn’t be forced to face in Illinois federal court one of the women’s charges because the company doesn’t have the sort of “affiliations” with Illinois that make it subject to the jurisdiction of courts in the state. Because Walmart is incorporated in Delaware and has its principal place of business in Arkansas, the company was correct that the U.S. District Court for the Southern District of Illinois couldn’t exercise jurisdiction over the retailer on either of those traditional bases, Reagan said.

But Walmart does more business and has a larger workforce in Illinois than in almost every other state, including both Arkansas and Delaware, Reagan said. It also collects more taxes in Illinois than in Arkansas. That’s a strong enough business relationship with Illinois to require the company to face former Jacksonville, Fla., employee Otisha Woolbright’s claims in the Southern District of Illinois, the judge said.

Woolbright, together with O’Fallon, Ill., Walmart employee Talisa Borders, sued the retailer in May 2017 on behalf of themselves and as many as 48,000 women nationwide. They say that until March 2014 the company had a different set of rules for accommodating female workers’ pregnancies than it did for accommodating other workers’ health issues.

Under the company’s then existing policies and practices, women who were restricted in their physical abilities because they were pregnant “were only offered job aids or environmental adjustments,” Woolbright and Borders say. That contrasts unfavorably with how the company treated other employees with similar disability-related abilities or inabilities to work. Those workers were afforded full accommodations, they say.

The U.S. Supreme Court in 2015 in a landmark ruling interpreted the federal Pregnancy Discrimination Act as requiring employers to offer a pregnant employee with work restrictions the same accommodations it makes available to other, nonpregnant employees “similar in their ability or inability to work.”

“We are thrilled with this huge victory for our clients,” one of the women’s lawyers said in a March 29 statement. “Judge Reagan saw through Walmart’s transparent attempts to dodge responsibility, and we look forward to holding the company accountable for their unlawful actions of pushing pregnant workers out when they need income the most,” Dina Bakst said. “Our clients look forward to telling their stories and ensuring that no pregnant worker is forced to go through what they have at Walmart.” The New York-based Bakst is a co-founder and co-president of A Better Balance.

“Walmart must right its wrongs and compensate these employees for their losses,” Ellen Eardley, another of the women’s attorneys, said in the statement. “It’s time Walmart stops discriminating against its pregnant employees and treating them like second-class citizens,” she said. Eardley is a partner with Mehri & Skalet PLLC in Washington.

“This order comes at the early stages of the case and was not a decision on the merits of it,” a Walmart spokesman told Bloomberg Law in a March 30 email. “The matter will now move into the fact finding phase,” he said, adding that the company denies Borders and Woolbright’s claims and plans “to continue to defend” the case.

“Walmart has always been a great place for women to work,” he said. “Our policies have always fully met or exceeded both state and federal law and this includes the Americans with Disabilities Act and the Pregnancy Discrimination Act.”

“We have also had a strong anti-discrimination policy, which provides more protection than required by the law,” the spokesman said. “That policy has long listed pregnancy as a protected status.”

Other Arguments for Dismissal Also Rejected

Reagan also wasn’t persuaded by any of Walmart’s other arguments for dismissal of the case.

Woolbright and Borders’ lawsuit alleges plausible claims that Walmart treated them and other women differently because of their sex and pregnancy, the judge said. The lawsuit also adequately alleges that the company’s pre-March 2014 policies and practices for accommodating pregnant and similarly disabled workers were discriminatory on their face and had a biased impact on women and that Woolbright and Borders were subjected to pregnancy-related retaliation, he said.

Requesting an accommodation is a protected activity for purposes of proving a retaliation claim, the court said. Seeking “time off for medical reasons, such as child-birth related leave,” also may be protected activity, the court said.

Borders alleges that her pregnancy-related need for assistance climbing ladders and lifting heavy objects was at first accommodated by the O’Fallon store. But she was later told she needed to provide a doctor’s note to continue working at Walmart. She says she did, but the company still refused to accommodate her and forced her to take “unwanted, unpaid leave.” When she returned to work six weeks after giving birth, she says, it was to a different job that paid her $2 less per hour.

Woolbright says her need for pregnancy-related job assistance ultimately got her fired. First, Assistant Store Manager Teresa Blalock called her “a liability” and told Woolbright her pregnancy was no excuse for having physical limitations, she says. She was later briefly accommodated when she suffered an on-the-job injury while lifting heavy trays in her deli and bakery job, but when she subsequently asked for information about Walmart’s childbirth leave policies, she was abruptly terminated, Woolbright says.

Cyrus Mehri, Michael Lieder, and Brett Watson of Mehri & Skalet PLLC in Washington; Mary Anne Sedey and Donna L. Harper of Sedey Harper Westhoff in St. Louis; Elizabeth Gedmark of A Better Balance in Nashville, Tenn.; and Emily J. Martin and Sunu P. Chandy of the National Women’s Law Center in Washington also represent Woolbright, Borders, and the proposed class.

Abimbola O. Oladokun and Andrew G. Klevorn in Chicago and Andrew J. Demko and Stacey McKee Knight in Los Angeles, all of Katten Muchin Rosenman LLP, represent Walmart.

The case is Borders v. Wal-Mart Stores, Inc., S.D. Ill., No. 3:17-cv-00506, dismissal denied 3/29/18.

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