|January 14, 2014|
Previously published on January 13, 2014
An employer’s policy of accommodating medical restrictions arising only from work-related incidents, and not those arising from non-workplace-based conditions, including pregnancy, in conjunction with comments made by decision makers about pregnancy could allow a reasonable jury to conclude the employer’s business decision was so lacking in merit as to be a pretext for discrimination, a federal appeals court in Cincinnati has ruled. Latowski v. Northwoods Nursing Ctr., 2013 BL 352840, No. 12-2408 (6th Cir. Dec. 23, 2013) (unpublished). The Court reversed the grant of summary judgment to the employer on the plaintiff’s pregnancy discrimination claims and returned the case to the lower court.
Jennifer Latowski, a certified nursing assistant (“CNA”), was hired by North Woods Nursing Center in July 2007. On September 26, 2008, when North Woods became aware that Latowski was pregnant, it asked Latowski to obtain a doctor’s statement that she did not have any employment restrictions. Company policy required an employee to obtain a medical statement whenever the company learns of “anything medical.” North Woods explained that the policy was motivated by its desire to know the employee can work safely.
Latowski continued to work until October 1, when the company received her doctor’s medical statement placing her on a 50-pound lifting restriction. North Woods immediately informed Latowski that she could no longer work due to the lifting restriction and that North Woods could be “liable if something happened to [Latowski’s] baby.” Latowski also was informed that her lifting restriction could not be accommodated, since the company’s policy allow only accommodation of restrictions due to work-related incidents. Latowski nevertheless reported for work on October 2 and was escorted from the premises.
On October 15, North Woods contacted Latowski to discuss her eligibility for leave under the Family and Medical Leave Act. Latowski declined to take FMLA leave since she would still be pregnant when the leave period expires. North Woods accepted Latowski’s resignation on October 17 in a letter to her explaining the company would not accommodate a non-work-related restriction.
After filing a charge with the Equal Employment Opportunity Commission, Latowski returned to the employer’s work site to pick up her personnel records and two North Woods administrators again discussed FMLA leave with her. During this discussion, the administrators posed hypotheticals as to what might happen later in Latowski’s pregnancy, including how lifting a patient who exceeded her lifting restriction could jeopardize her health and her pregnancy, and commented that her “belly would be in the way.”
Latowski sued the employer, alleging pregnancy discrimination, violations of the Americans with Disabilities Act and the FMLA, as well as related Michigan state law claims. The district court granted the employer’s motion for summary judgment, dismissing all of Latowski’s claims.
On appeal, the appellate court reversed the grant of summary judgment on the pregnancy discrimination claims.
The appellate court found the CNA established a prima facie case of pregnancy discrimination under the Pregnancy Discrimination Act (“PDA”) by showing:
1) she was pregnant;
2) she was qualified for the job;
3) she was subjected to an adverse employment decision; and
4) there is a nexus between her pregnancy and the adverse employment decision.
Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000).
The parties did not contest Latowski established the first and third elements of a prima facie case. The Court disagreed with the lower court’s finding that Latowski did not satisfy the second element. It found she was qualified for her job based on the proof in the summary judgment record.
As to the fourth element, Latowski presented evidence that North Woods treated other CNAs with similar lifting restrictions more favorably by assigning them to light duty positions. Even though Latowski admitted these CNAs differed from her since their restrictions were due to work-related medical conditions, the Court found Latowski satisfied the fourth element, thus establishing a prima facie case of pregnancy discrimination.
Latowski argued that the company’s policy that employees work with no restrictions was so absurd that it could not have motivated the decision to terminate her employment. The Court of Appeals pointed out that the statements made by North Woods administrators could reveal a discriminatory animus against pregnant women, which would support an inference that application of the company’s neutral policy was a pretext for discrimination. It further reasoned that the remarks were substantively relevant because they were made directly in relation to Latowski’s termination.
The Court said the Sixth Circuit recognizes that a policy is not necessarily a pretext for discrimination merely because it is ill-advised. It said, “The law does not require employers to make perfect decisions, nor forbid them from making decisions others may disagree with.” Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996). However, the reasonableness of an employer’s decision may be considered to the extent that such an inquiry sheds light on whether the employer’s suggested reason for the employment action was its actual motivation. See Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003).
Considering the totality of circumstances, the Court found a reasonable jury could conclude that the employer’s policy, and the business decision surrounding the neutral policy of accommodating only work-related restrictions, is so lacking in merit as to be a pretext for discrimination.
While courts generally afford deference to employer policy choices, Latowski illustrates that neutral employment policies can be successfully attacked. The decision also underscores the negative effects decision makers’ comments about protected characteristics can have when adverse employment actions are later litigated.