Seyfarth Synopsis: On April, 17, 2020, the Eleventh Circuit Court of Appeals in Durham v. Rural/Metro Corp., No. 18-14687, considered a matter of first impression within the Circuit and became one of the first appellate courts to consider the following: who is deemed a valid comparator to a pregnant employee as part of the prima facie case under the McDonnell Douglas burden-shifting framework as modified by the Supreme Court in Young v. United Parcel Serv., Inc., 575 U.S. 206 (2015), for cases involving the Pregnancy Discrimination Act of 1978 (“PDA”). The answer is anyone, whether injured on or off the job, who cannot perform their job without an accommodation because of a restriction like that of the pregnant worker.
In the case presented, the employer Rural gave light-duty assignments to four employees who had lifting restrictions due to injuries on the job. But when Durham requested light duty because of a lifting restriction her doctor had recommended during her pregnancy, Durham was told she could not receive a temporary light-duty assignment because those assignments were only available to employees on worker’s compensation, not to those with off-the-job injuries. She was also told that, because of her doctor’s recommended lifting restrictions, she could not remain on the job absent a medical release clearing her for full active duty as an EMT with the ability to lift 100 pounds.
Absent a medical release, Durham’s only option was unpaid leave that may prove to be insufficient in length to take her through the end of her pregnancy and would provide her with no job protection or right to reinstatement. The unpaid leave policy also prevented work for other companies during the leave. After receiving no reassurance of an exception from the prohibition on work for others while on the unpaid leave, Durham filed an EEOC Charge followed by a lawsuit for pregnancy discrimination, arguing that she had been effectively discharged because her only option (unpaid leave) left her unable to earn income during her pregnancy.
Following discovery, Rural moved for summary judgment, and the district court granted it after concluding that Durham had failed to establish the fourth element of her prima facie case—that non-pregnant employees whose off the job injuries resulted in lifting restrictions were placed on light duty assignment.
On April 17, 2020, the Eleventh Circuit Court of Appeals reversed and remanded on the ground that, in Young, the Supreme Court had changed the fourth element of the prima facie case under the PDA from Title VII’s typical comparator analysis to the following, more general showing: the employer accommodates others “similar in their ability or inability to work.” This more general comparator analysis, the Eleventh Circuit explained asks only whether others who have received the accommodation were also unable to do the job without it. In other words, Durham’s co-workers who were unable to lift more than 10 or 20 pounds because of injuries on the job were valid comparators because they and Durham were “equally unable to perform the 100-pound lifting duties of an EMT. Thus, Durham and her colleagues who were injured on the job were ‘similar in their ability or inability to work.’” In addition, Rural had a disabilities accommodation policy that left open the possibility that others with off-the-job injuries and subsequent lifting restrictions may have received accommodations.
Because the District Court had granted summary judgment on Durham’s inability to prove her prima facie case, it never considered whether Durham could show that Rural’s legitimate, nondiscriminatory reasons for denying her requested accommodation were a pretext for pregnancy discrimination. Thus, the Eleventh Circuit remanded the case for determination of this issue.
The Eleventh Circuit also cautioned that the Supreme Court in Young had said that an employer normally cannot establish a legitimate, non-discriminatory reason by saying that it would be more expensive or less convenient to give pregnant workers light duty. An employee does enough to survive summary judgment if she shows that the policy reasons for denying a light-duty accommodation granted others imposes a significant burden on pregnant workers and that the justifications for such policies (i.e., the nondiscriminatory reasons) are not sufficiently strong to justify the burden on pregnant workers and instead give rise to an inference of intentional discrimination.
The key takeaways from this case are:
- If certain accommodations (including but not limited to temporary light-duty assignments) are limited to those with on-the-job injuries, consider why that is the case and ensure there is more than a monetary or convenience reason for treating those with on-the-job injuries differently from pregnant workers with similar work restrictions.
- Engage in the same interactive dialogue with pregnant workers that you undergo with disabled workers, even when the pregnant workers are not deemed disabled under disability laws.
- Ensure that pregnant workers are not treated differently than those who have similar work restrictions because of other medical reasons.
- Few appellate courts have ruled on the implementation of the Supreme Court’s Young decision, but those that have done so are in line with the Eleventh Circuit’s decision in this case. Thus, this analysis should be considered for operations in other jurisdictions as well.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Leave Management & Accommodations Team or the Handbooks and Policy Development Team.