TBA Law Blog

Posted by: Christy Gibson on Feb 14, 2014

By Kelly Gooch Carlson

Director/General Counsel

Youth Villages, Inc.


Employers should re-examine their policies regarding accommodation of pregnancy-related work restrictions in light of a recent decision of the U.S. Court of Appeals for the Sixth Circuit, Latowski v. North Woods Nursing Center, No. 12-2408 (Dec. 23, 2013).

The employee in this case, Jennifer Latowski, a certified nurse’s assistant, had satisfactorily performed her job duties since July 2007 and had passed four “essential functions” tests.  In September 2008, North Woods became aware of Latowski’s pregnancy.  She was requested to bring in a doctor’s note stating she had no work restrictions and was told this rule applied to all medical situations.  After Latowski’s doctor faxed a note to the facility stating “only restriction no lifting over 50#,” the Director of Health Care Services informed her that she could not work because North Woods would only accommodate restrictions resulting from work-related incidents. The Director explained that the company could be liable if something happened to her baby.

Latowski declined to take FMLA so early in her pregnancy because she would still be pregnant when the leave expired.  North Woods considered this a “resignation.”  After Latowski  filed an EEOC charge, North Woods’ co-owner and manager again discussed with Latowski the possibility of FMLA leave and commented that later in the pregnancy her “belly would be in the way.” At various times, remarks were made to Latowski  by the Director and other company officials that she wouldn’t want to lose her baby, that lifting weight in excess of her restriction could jeopardize her health or that of the baby, and that the policy of requiring a doctor’s note from pregnant employees was motivated by the desire to “know that the employee is able to work safe for her and her child.”

Eventually, Latowski  filed a lawsuit alleging violations of the Americans with Disabilities Act,  the Family and Medical Leave Act, and Title VII as amended by the Pregnancy Discrimination Act. The district court granted summary judgment in favor of the employer on all claims.

The Sixth Circuit reversed summary judgment on the Pregnancy Discrimination Act Claim, finding that Latowski had established a prima facie case of pregnancy discrimination and that a genuine issue of material fact existed as to whether the employer’s reasons for its actions were a pretext for pregnancy discrimination.  In order to establish a prima facie case of pregnancy discrimination, a plaintiff must show that: 1) she was pregnant, 2) she was qualified for her job, 3) she was subjected to an adverse employment decision, and 4) there is a nexus between her pregnancy and the adverse decision.  For purposes of the second element, the plaintiff’s qualifications are to be measured by whether she met the employer’s expectations prior to and independent of the events that led to the adverse action, the Court noted.

In order to show a nexus between the pregnancy and the termination, a plaintiff can show that she was treated less favorably than “another employee who is similarly situated in her or his ability or inability to work.”  The Court noted that this standard is different from the ordinary Title VII standard, in which the employee must show that the employee who received more favorable treatment was similarly situated in all respects.  Plaintiff met this element by showing that employees with similar lifting restrictions caused by work-related accidents were treated more favorably by being assigned to “light duty.”

North Woods’ asserted legitimate, nondiscriminatory reason for removing Latowski from the work schedule and terminating her employment  was that it has an economics-based policy of refusing to accommodate restrictions arising from injuries incurred outside the workplace.  The Court noted that a policy is not necessarily a pretext for discrimination merely because the Court finds it ill-advised. Nevertheless, the Court found that the reasonableness of the decision can be considered to the extent that it sheds light on whether the employer’s proffered reason for the employment action was its actual motivation.   In this case, the Court found that a jury could easily conclude that North Woods’ policy – to terminate 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 job – lacks merit and could be a pretext for discrimination.  Additionally, the comments made by various managers and administrators of North Woods revealed discriminatory animus against pregnant women.

In light of this decision, it would be wise for employers to examine their policies related to accommodating restrictions related to work-related injuries as compared to their policies related to pregnancy-related restrictions.  Further, employers should train their supervisors and managers regarding  the types of pregnancy-related remarks that are unacceptable.