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Walmart, EEOC Take Pregnant Workers’ Battle to Seventh Circuit

March 30, 2022, 8:45 AM

Walmart and the EEOC will battle it out Thursday over the company’s exclusion of pregnant workers from light duty. But it’s not just the policy that is at issue, rather how Walmart justified it.

The retailer limited its alternate duty policy to workers temporarily unable to perform their usual work because of an on-the-job injury. But it didn’t address specifically why pregnant workers were excluded, the agency will tell the U.S. Court of Appeals for the Seventh Circuit.

But Walmart says the law doesn’t require it to do that. It offered plenty of reasons justifying the policy the EEOC alleges discriminated against pregnant women working at a Wisconsin distribution center, including that it was intended to speed the recovery times of workers hurt on the job, reduce the costs and legal exposure to those workers arising under workers’ compensation laws, and increase employee loyalty and morale.

The workers’ compensation explanation by Walmart is enough, Amanda Davis Twinam, an attorney who represented the employer in a similar Second Circuit case, said. Employers are allowed to protect their bottom line.

The ultimate decision about who has to explain what is significant because it is at the heart of the U.S. Supreme Court’s 2015 decision in Young v. United Parcel Service Inc.

The federal trial court that granted judgment to Walmart misinterpreted that decision, employment rights attorney M. Megan O’Malley told Bloomberg Law. It’s important for the Seventh Circuit to clarify the proper standard, she said.

Policy Justified

The Supreme Court’s modified proof scheme for pregnancy accommodation cases prevents employers from justifying job policies that don’t treat pregnant women the same as some other employees similar in their inability—or ability—to work with the same generic excuses that might be allowed to explain other types of workplace bias, the EEOC said in its pre-argument brief.

Walmart, which in 2017 changed the policy at issue in the EEOC’s September 2018 suit, argues that the EEOC is drawing “a distinction without a difference.” Saying why only certain workers are eligible also explains why all others aren’t, it said.

Offering a legitimate reason for how an employment policy is tailored is still all that’s required, Walmart said. There’s no need to specifically explain why pregnant workers were excluded.

The policy at issue didn’t actually exclude all pregnant workers from its benefits, it just excluded pregnant workers who weren’t injured on the job, Walmart said.

It also excluded all other workers who weren’t hurt on the job but were otherwise limited in the ability to work, the company said. Like pregnant women, those workers were offered leaves of absences or accommodations under the Americans with Disabilities Act, Walmart said.

Requiring the further explanation and information the EEOC says is needed would shift the burden of proof to employers and accord pregnant workers the type of “most-favored nation” status the Supreme Court expressly disclaimed in Young and prior cases, it said.

The Second and Eleventh circuits have applied Young’s burden-shifting test without imposing a heightened burden on employers at step two, it said.

‘Too Far’

“The EEOC goes too far,” attorney Twinam said. Nothing in Young supports the changes to the parties’ burdens in intentional discrimination cases the EEOC seeks, she told Bloomberg Law.

The agency is improperly trying to convert an employer’s burden in pregnancy accommodation cases from one of production to one of persuasion, she said. Twinam and fellow Romer Wallens Gold & Mineuax LLP partner Matthew J. Kelly represented the employer in the Second Circuit case cited by Walmart.

The standard the EEOC seeks to hold employers to would implicate all jobs that involve work with or around equipment or employees whose duties keep them on their feet, Kelly said.

“Any manufacturing concern would have an issue” under the EEOC’s view if it has a policy that creates light-duty opportunities for workers with on-the-job injuries even if the policy is supported by legitimate factors like those offered by Walmart, he said.

Walmart is right that its explanation for why its policy was limited to just those hurt on the job implicitly explains why pregnant workers without on-the-job injuries weren’t covered by the policy, Twinam said.

Reversal Required

The EEOC disputed that characterization.

Walmart had unlimited light-duty jobs and it’s not clear why it could accommodate one group of workers—those with on-the-job injuries—but not pregnant women, the EEOC said.

Young recognized that the Pregnancy Discrimination Act amendments to Title VII were intended to negate the types of “cost or convenience” justifications that employers traditionally had offered for excluding pregnant workers from job benefits, the agency said. The case requires employers to do more than “simply articulate” why non-pregnant workers were provided with a job benefit, it said.

Under Young, the ultimate question is whether the nature of a job policy and the way it burdens pregnant workers demonstrates intentional discrimination, the EEOC said.

Employers therefore must come forward with “sufficient information” explaining why pregnant workers were excluded, it said.

That doesn’t mean Young changed the employer’s burden to one of persuasion and it isn’t arguing it did, the EEOC said.

EEOC attorneys in Washington represent the commission. King & Spalding LLP represents Walmart.

The case is EEOC v. Wal-Mart Stores East, LP, 7th Cir., No. 21-01690, oral argument 3/31/22.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Carmen Castro-Pagán at