Amanda Reeves began working for Swirl Transportation Company, Inc. (Swift) as a truck driver on August 9, 2002. (1) When she applied for the job, the employer advised her that the position required occasional physical activity, such as bending, twisting, climbing, squatting, crouching, and balancing, and that she would be required to push and pull contents weighing up to 200 pounds. (2) Reeves was physically able to meet the demands of the position when she was hired, and the employer recognized that she was qualified for the job. (3) On November 2, 2002, Reeves learned that she was pregnant, and her doctors determined that she was able to continue working, but restricted her to light work. (4) The employer responded by informing her that there were no available light duty positions and sent her home. (5) Reeves continued to ask for light duty work, but the employer insisted that there was nothing available. (6) After two weeks of daily inquiries for light duty work, her employment was terminated on November 14, 2002. (7) On January 7, 2003, Reeves filed a formal complaint with the Equal Employment Opportunity Commission (EEOC) alleging violations of the Pregnancy Discrimination Act (PDA). (8) During the lawsuit, Swift maintained that only employees injured on the job received light duty work, and since Reeves was not alleging a job-related injury, light duty work in the form of administrative duties, such as filing and answering phones, could not be made available to her. (9) Without a hearing, the circuit court affirmed the district court's decision that Swift's light duty policy did not amount to pregnancy discrimination and that Reeves did not prove pretext or intent to discriminate. (10) In fact, the court noted that Reeves's complaint asked the court to grant her preferential treatment, rather than equal treatment, which conflicts with the requirements of the PDA. (11)
Amanda Reeves is not alone in the experience of becoming pregnant and losing her job, notwithstanding her continued desire and ability to remain part of the workforce. Despite the enactment of the PDA over twenty-five years ago, the EEOC reported that in 2006, 4,901 women filed claims of pregnancy discrimination on the job. (12) The law does not explicitly mandate that employers accommodate employees' pregnancy-related limitations, even when the limitations are temporary. As a result, a number of federal circuit courts fail to protect the interests of pregnant women who want to maintain their jobs. (13) Despite the passage of the PDA, women still find themselves having to make the difficult choice between having a family and having a career. (14)
This Article argues that many pregnant women cannot win an employment discrimination case under the McDonnell Douglas test (15) even with the protection of the PDA and that Congress should amend the statute to correct this problem. Part I provides background on Title VII, the PDA, and the conflicting ways in which the federal circuit courts interpret these statutes in pregnancy discrimination cases. Part I also examines Supreme Court jurisprudence that can be used by the courts and Congress to mandate accommodations for pregnant employees without violating anti-discrimination laws. Part II demonstrates how different courts interpret the PDA to either permit adverse action against employees experiencing temporary pregnancy-related limitations or require employers to accommodate such employees with modified duty. Finally, Part III makes a policy recommendation to amend the PDA in order to require that employers accommodate temporary pregnancy-related limitations in the workplace.
Title VII and the McDonnell Douglas Test
Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, and national origin with respect to a person's "compensation, terms, conditions, or privileges of employment." (16) The purpose of Title VII is to achieve equal employment opportunities for historically disadvantaged groups. (17) The plaintiff's obligation is to prove that a protected trait played a role in the employer's decision and that it had a determinative influence in an adverse employment action. (18)
The test to prove a violation of Title VII against an individual, using circumstantial evidence, was first articulated by the Supreme Court in McDonnell Douglas Corporation v. Green. (19) The Court established a three-part burden-shifting test with the ultimate burden on the plaintiff to prove that the employer's proffered legitimate reason for adverse action was pretext for discrimination. (20) In the first part of the McDonnell Douglas test, the plaintiff must establish a four-pronged prima facie case of discrimination. The four prongs are: (1) that he or she belongs to a protected class; (2) that he or she applied for and was qualified for a particular position; (3) that he or she was not hired to that position; and (4) that the position either remained open or was granted to a less qualified person outside of the plaintiff's protected class. (21) Once the plaintiff establishes a prima facie case, the second part of the McDonnell Douglas test shifts the burden to the employer who must articulate a legitimate, non-discriminatory reason for the adverse employment action. (22) If the employer meets its burden of production, the third part of the McDonnell Douglas test requires the plaintiff to rebut the employer's articulated reason by showing that the reason is pretext for a discriminatory motive for the employer's action. (23) McDonnell Douglas was a hiring discrimination case based on racial discrimination. (24) However, the test articulated by the Court has been applied to other fact patterns and other adverse employment actions. (25)
The Supreme Court First Considers Pregnancy-Based Discrimination
In General Electric Co. v. Gilbert, several female employees alleged violation of Title VII when their employer's disability plan provided benefits to employees who suffered non-occupational infirmities but excluded from its coverage the risk of any conditions resulting from pregnancy. (26) The Supreme Court acknowledged that only women may experience pregnancy, but it differentiated pregnancy from other covered medical conditions on the ground that disabilities from pregnancy are different from disease and accidents because pregnancy is voluntary and desired. (27) The Court held that the policy was non-discriminatory because it did not cover any more risks for male employees than it did for female employees, or vice versa, (28) Within the benefits framework, the Court reasoned that pregnancy-related disabilities constituted an additional risk, albeit one unique to women. (29) The Court viewed the insurance program as dividing employees into two groups, pregnant persons and non-pregnant persons, and since there were women in both groups it disagreed that the plaintiffs had demonstrated discrimination against a protected class, the first prong of the McDonnell Douglas prima facie case. (30)
Congress Passes the Pregnancy Discrimination Act
In response to the Court's holding in Gilbert, Congress passed the Pregnancy Discrimination Act (PDA), (31) thereby amending Title VII to clarify that sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. (32) The legislative history suggests that the purpose of the PDA was to ensure that pregnancy-related disabilities would be treated the same as other temporary disabilities, thereby giving women a chance to be on equal footing with men. (33) Additionally, supporters of the PDA noted that discrimination against pregnant women required them to face an economic disadvantage greater than that faced by a person experiencing a different medical limitation, because adverse action against a pregnant employee increases social and economic costs at the same time that a new family member is added. (34) Congressional PDA supporters also recognized that women contributed significantly to their families' finances and that loss of income due to pregnancy discrimination could negatively affect the entire family unit. (35)
Applying the McDonnell Douglas Test to Pregnancy Discrimination Cases
In pregnancy-based employment discrimination cases, federal courts apply the McDonnell Douglas test. (36) The plaintiff alleges discrimination based on the fact that she is a pregnant woman. Because Title VII and the PDA classify sex and pregnancy as protected traits, (37) the plaintiff can typically satisfy the first prong of the prima facie case with relative ease. (38)
To satisfy the second prong of the prima facie case, the plaintiff must show that she was qualified for the position when the employer terminated her. (39) In cases where a plaintiff alleges unlawful termination because the employer refused an accommodation such as modified work, some courts have found that the plaintiff was no longer qualified for the unmodified position, and therefore she cannot satisfy the second prong of the prima facie case. For example, in Dormeyer v. Comerica Bank-Illinois, the Seventh Circuit held non-discriminatory an employer's assessment that a pregnant employee whose morning sickness caused absenteeism was no longer qualified for the position of a bank teller. (40) Likewise, the Eleventh Circuit in Spivey v. Beverly Enterprises found no unlawful discrimination when an employer fired a pregnant nurse's assistant, whose doctor restricted her to lifting a maximum of twenty-five pounds, rendering her unable to lift patients--just one of her many duties. (41)
To satisfy the third prong of the prima facie case, the plaintiff must show that she suffered an adverse employment action. (42) Although courts usually classify adverse action as termination or discharge, the Sixth Circuit in Tysinger v. Zanesville Police Department found adverse employment action earlier, when the...