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Walmart Pregnancy Accommodation Ruling Puts Pressure on Congress

Aug. 19, 2022, 9:30 AM

A recent Seventh Circuit decision upholding a Walmart distribution center’s temporary light duty policy that excludes pregnant workers is creating urgency for the Senate to pass bipartisan legislation that would require such accommodations.

The retail giant convinced the US Court of Appeals for the Seventh Circuit earlier this week that its temporary light duty policy lawfully only covered workers injured on the job, and didn’t illegally exclude pregnant employees. The US Equal Employment Opportunity Commission, which sued on behalf of female employees at Wal-Mart Stores East LP in Wisconsin, had argued that the policy goes against federal nondiscrimination law.

Meanwhile, Democrats in the Senate are failing to move a bill that would require employers to make reasonable accommodations for employees limited by pregnancy.

The Pregnant Workers Fairness Act (H.R. 1065) passed the House in May and cleared the Senate Health, Education, Labor and Pensions Committee by a 19-2 vote in August. The law would mirror protections granted under the Americans with Disabilities Act but for pregnant workers.

The PWFA has multiple Republican cosponsors and is supported by the US Chamber of Commerce and the Society for Human Resource Management, two of the top employer lobbying groups.

Senate Majority Leader Chuck Schumer’s (D-N.Y.) office didn’t immediately respond to a request for comment. The Senate is currently in recess and is set to reconvene in September.

“At this moment in history when we have enough votes to get this bill signed into law it is just shameful that Democrats are sitting on it,” said Liz Morris, deputy director of the Center for WorkLife Law at the University of California, Hastings College of the Law.

‘Gap in the Law’

Currently, pregnant workers can only rely on the Pregnancy Discrimination Act for protections against bias based on pregnancy at the federal level. The PDA does not, however, guarantee accommodations for pregnant workers.

“This is an unfortunate gap in the law,” said Brian Sutherland, an attorney at plaintiff firm Hall & Lampros LLP.

Meanwhile, over half of states have pregnancy accommodation statutes with varying levels of protections. This creates a patchwork of laws that can be a sticky legal landscape for pregnant workers seeking temporary accommodations, Morris said.

Federal courts typically rely on the 2015 US Supreme Court decision in Young v. United Parcel Service Inc., in which the court ruled that employers that accommodate workers who are similar to pregnant workers in their ability to work cannot refuse accommodations to workers who are pregnant under the PDA. But courts have been inconsistent in their interpretation of the Young ruling.

The Young case “was helpful because it did provide some protection for pregnant employees, but only insofar as other disabled employees were getting that type of protection,” Sutherland said. “That was good, but we’re still in a position where the law doesn’t adequately protect pregnant employees and I think this ruling demonstrates that.”

In the Walmart case, the company argued that its light work policy didn’t discriminate against pregnant workers because it was meant to avoid liability under a state workers’ compensation law. The Seventh Circuit agreed, and said the EEOC was wrong in arguing that the employer has a heightened burden under Young to explain why it could not grant the same accommodations for pregnant workers.

The EEOC didn’t immediately respond to a request for comment regarding how it plans to respond to the decision.

“This continues to be a complicated and fact-specific inquiry and that is terrible for pregnant people and employers because it’s incredibly confusing to determine when pregnant people have a right to receive accommodations,” Morris said. “That causes employers to run afoul of the law and causes pregnant people to not understand what their rights are.”

Pregnant in the Workplace

Gillian Thomas, a senior attorney with the ACLU’s Women’s Rights Project, said the PWFA would streamline these legal battles under one law, giving pregnant women a right to accommodation regardless of how their employer treats other workers.

“Decisions like this from the Seventh Circuit just highlight the incredible urgency of passing the PWFA,” Thomas said. “While we think the court here got it wrong, and under the PDA the EEOC should have prevailed, there’s clearly just a lot of confusion even among judges about how to apply this law.”

One plaintiff in the Walmart case described begging for light work and being denied her request. The woman kept working to save money for unpaid maternity leave until she started bleeding and the fetal heart rate began to drop.

Notably, the ruling comes just months after the US Supreme Court eliminated abortion rights on the federal level. Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, is expected to have ripple effects for women in the workforce.

“Unquestionably, since there is now a policy of forced pregnancy in many states in this country these issues are going to be arising with greater frequency,” Thomas said.

To contact the reporter on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editors responsible for this story: Genevieve Douglas at gdouglas@bloomberglaw.com; Laura D. Francis at lfrancis@bloomberglaw.com