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Walmart Pregnancy Accommodation Case Raises Proof Burden Issues

March 31, 2022, 5:55 PM

The EEOC’s argument that Walmart is liable for pregnancy discrimination because it failed to expressly address why it excluded pregnant workers under a policy that provided temporary light duty to employees injured on the job was met with some skepticism by the Seventh Circuit on Thursday.

The U.S. Supreme Court’s 2015 decision in Young v. United Parcel Service Inc. established that just saying why a policy only included certain workers isn’t enough, the Equal Employment Opportunity Commission said during oral argument on appeal in a suit filed against the retailer in 2018.

Wal-Mart Stores East LP never offered a reason why pregnant workers at a Wisconsin distribution center couldn’t have also been accommodated under its temporary alternate duty policy, attorney James Driscoll-MacEachron said for the agency. And it’s an established fact that there were unlimited light-duty positions available at the location, Driscoll-MacEachron told the U.S. Court of Appeals for the Seventh Circuit.

The justices in Young said they modified the proof scheme typically used in intentional job bias cases when pregnant accommodation is at issue to carry out the full intent of the Pregnancy Discrimination Act amendments to the sex bias provisions of Title VII of the 1964 Civil Rights Act, he said.

Young made clear that an employer can’t just say a work policy wasn’t aimed at pregnancy, but at another job issue like accommodating on-the-job injuries. The employer must spell out specifically why pregnant workers were excluded, Driscoll-MacEachron said.

‘Too Clever’

“That all seems too clever to me,” one judge said.

It also seemingly is at odds with Young’s statement that the PDA wasn’t meant to give pregnancy “most-favored nation status” in the workplace, the judge said.

But Young’s warning in that regard isn’t implicated here, Driscoll-MacEachron said.

The modified test it created only requires the articulation of a reason why pregnant workers couldn’t also have been accommodated under a policy that accommodated other workers similar in their ability or inability to work, he said.

There could be a valid reason in the right case, but Walmart didn’t provide one given the existence of unlimited light duty, he said.

Also, accommodating pregnant workers wouldn’t have hindered the company’s ability to likewise accommodate workers hurt on the job, Driscoll-MacEachron said.

He said Walmart ultimately changed the policy to include pregnant workers, showing they could have been accommodated with light duty all along.

But there appears to be an issue of whether that’s admissible evidence, the judge said.

The judge also asked “why didn’t the EEOC just declare victory and go home” at that point. Instead, it’s seeking punitive damages against Walmart, the judge said.

That’s because the 13 women at the Wisconsin facility, who the agency sued for, suffered damages, Driscoll-MacEachron said.

Issue Still Intent

Even under Young, the ultimate issue in disparate treatment bias cases remains “intent,” Marisa Maleck told the court. She’s with King & Spalding and represented Walmart.

The question isn’t simply whether a work policy burdened pregnant workers, she said. As long as the employer offers a legitimate reason for a policy’s limitations, the burden is on the plaintiff to show that explanation was pretextual and that an intent to discriminate was the real reason, she said.

Young and subsequent rulings by the Second and Eleventh circuits all support that there’s no additional burden on employers at step two of the burden-shifting scheme used in intentional job bias cases, and Walmart provided valid reasons for limiting its TAD policy to just those injured at work, Maleck said.

These included compliance with workers’ compensation law, speeding the recovery of workers with on-the-job injuries, and the special duty employers owe to employees injured while working for them, she said.

The EEOC didn’t offer any evidence of pretext similar to that present in Young and other cases, Maleck said. Walmart wasn’t inconsistent in application of the TAD policy. Only workers hurt on the job were ever accommodated under it and those injured off duty or otherwise limited in their ability to perform never were, she said.

The EEOC’s demand for an explicit explanation of why pregnant workers were excluded under the policy is “just the flip side” of the company’s explanation of why the policy was limited to just on-the-job injuries, Maleck said.

‘About Justification’

But “Young is about justification,” Driscoll-MacEachron said on rebuttal. Proving an employer’s explanation was pretextual is an alternate way to prove intent in pregnancy accommodation cases, he said.

Walmart’s flip-side argument goes to evidentiary issues that weren’t relied on by the lower court when it dismissed the EEOC’s case, Driscoll-MacEachron said.

The Seventh Circuit should either grant judgment to the agency or remand the case for trial, he said.

That 100% of pregnant workers were denied accommodation under the TAD before it was amended while all 89 workers hurt on the job who sought light duty were granted it is evidence of discrimination, MacEachron said.

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 pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com