Comments Are Not Rendered Harmless Because They Are Motivated By Compassion For Pregnant Employee And Unborn Child

By:  Claudia D. Orr

Case after case reflects the truth behind this title.  An employer reassigns a pregnant employee because it is concerned about her health, and the discrimination case eventually follows. No good deed goes unpunished. Let’s review Latowski v North Woods Nursing Center to see how the pregnancy discrimination claim arose.

In 2007, Latowski was employed by North Woods as a certified nursing assistant (“CNA”). In this position, she assisted nursing home residents with daily living activities such as dressing, showering, eating, and moving about. A year later, she became pregnant. Pursuant to North Woods’ policy requiring employees to produce a doctor’s note when there was “anything medical”, Latowski provided a note indicating she had no restrictions. However, on October 1, 2008, a few months into her pregnancy, her doctor faxed in a note indicating Latowski had a 50 pound lifting restriction. Judy Doyle, Director of Health Care Services, advised Latowski she could not work with the restriction because North Woods only accommodates work related injuries and it did not want to be liable if something happened to her baby. However, she encouraged Latowski to have her doctor lift the restriction. Latowski said he would not, given her history of miscarriages.

When Latowski reported to work the following day, she was told she had “resigned” and she was escorted out.  Possibly after receiving some legal advice, Doyle contacted Latowski approximately two weeks later and offered her leave under the Family and Medical Leave Act. Latowski, however, refused leave since it was only her second trimester and she would run out of leave time before giving birth. Thus, Doyle sent Latowski a letter accepting her resignation effective October 17, restating that North Woods does not accommodate non-work related restrictions.

Latowski filed an EEOC charge and eventually a civil lawsuit alleging, among other things, claims under the federal Pregnancy Discrimination Act, Title VII and Michigan’s Elliott-Larsen Civil Rights Act. The Eastern District of Michigan judge granted the employer’s motion to dismiss, reasoning that North Woods’ policy of not accommodating non-work related restrictions was “pregnancy blind” and there was no evidence of an unlawful animus.

The Sixth Circuit reversed.  Under Title VII, discrimination “on the basis of sex” includes pregnancy and related medical conditions and it prohibits treating such individuals different from persons not pregnant but who have the same “ability or inability to work.”  Since Latowski produced evidence of light duty being provided to individuals with work related injuries who had similar lifting restrictions, she established a prima facie case of pregnancy discrimination.

In response, North Woods argued that it had an economic based justification for its policy. However, the 6th Circuit found that “[a] reasonable jury could easily conclude that North Woods’ business decision – to implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace injuries, even if those restrictions do not limit the employees’ ability to competently perform their jobs – is so lacking in merit as to be a pretext for discrimination.”

The court also referenced statements made by Doyle, a co-owner and a manager suggesting an unlawful animus, including:

  • You “wouldn’t want to lose your baby”
  • North Woods “would be liable if something happened to her baby and we had allowed her to work against her doctor’s advice”
  • That a CNA may be required to lift patients weighing more than 150 pounds “which could have exceeded [her] safe lifting capacity and jeopardized her health or that of her unborn child”
  • That her “belly would be in the way”
  • That the policy was motivated by the desire to “know that the employee is able to work safe for her and her child”

The 6th Cir found these statements made by management directly related to the termination decision. The court noted that the “comments are not rendered harmless because they were motivated by compassion or concern for Latowski and her unborn child’s health.” Thus, the court found sufficient evidence to withstand the motion to dismiss and reversed and remanded the case.  The court found the analysis to be the same under the state Elliott-Larsen Civil Rights Act.

What is inexplicable is that the court did not distinguish, or cite, Reeves v Swift Transportation Company, a 6th Circuit opinion from 2006 which held just the opposite.  There, the court reasoned that to provide a pregnant woman with light duty when the employer does not provide it to all others who have non-work related limitations was to afford preferential treatment to pregnant women.

Regardless, the Elliott-Larsen Civil Rights Act was amended in 2009 to prohibit an employer from treating “an individual affected by pregnancy, childbirth, or a related medical condition differently for any employment–related purpose from another individual who is not so affected but similar in ability or inability to work, without regard to the source of any condition affecting the other individual’s ability or inability to work” (emphasis added). It is generally believed that the italicized words would prohibit under state law the granting light duty to employees with work related injuries while denying it to pregnant women.

This case not only underscores the importance of training managers concerning employment laws applicable to their workplace, but also of seeking legal advice at the time employment decisions are being made.  Employment laws are complicated and require careful analysis to avoid liability.  If you have any employment issues that require legal advice, consult with an experienced employment attorney.

This article was written by Claudia D. Orr, a member of the Legal Affairs Committee. Claudia is an experienced employment attorney at Plunkett Cooney and can be reached at corr@plunkettcooney.com or 313-983-4863.

Detroit SHRM encourages members to share these articles within their organizations; however, members should refrain from forwarding them outside their organizations or printing for mass distribution without written permission of the Detroit SHRM Executive Committee. February 2014.