Walmart wins discrimination claim brought on behalf of pregnant employees unable to work

Consider the following two policies:

• Employees injured on the job will be offered Temporary Alternative Duty ("TAD") — light duty that enables the injured workers to keep working and earning their full wages while complying with any relevant medical restrictions.

-vs-

• Pregnant employees with lifting or other physical restrictions related to pregnancy are required to go on an unpaid leave of absence, and no TAD is or will be made available.

In EEOC v. Walmart Stores East, the 7th Circuit Court of Appeals concluded that despite the existence of the former, the latter did not discriminate against Walmart's pregnant employees.

The Court held that Walmart had a legitimate non-discriminatory reason for the differing policies despite both sets of employees being similar in their ability or inability to work — the implementation of a workers' compensation program that benefits employees injured on the job while limiting the company's legal exposure and its cost in hiring people to replace them.

Relying on the Supreme Court's decision in Young v. UPS, the court concluded that the EEOC had not provided "sufficient evidence that the employer's policies impose a significant burden on pregnant workers." The EEOC could only point to one pregnant employee impacted negatively by Walmart's differing policies, which felt short of Young's "significant burden" standard. The court added:

If developed further, and perhaps as applied to a number of other employees who were neither pregnant nor injured on the job, this type of evidence could show a "significant burden" on pregnant workers and undermine Walmart's stated justifications for limiting access to the TAD Policy.… The EEOC has not presented other evidence suggesting that workers similar to pregnant women in their ability or inability to work are accommodated under any employer policies barred to pregnant women, including the TAD Policy, other than the occupationally injured workers themselves.

In other words, the 7th Circuit seems to require a lot of examples of discrimination before considering that a policy that treats pregnant workers less favorably is discriminatory (or at least more than one). Title VII, however, as far as I've ever understood it, does not require a lot of discrimination. It just requires discrimination. While Young doesn't interpret Title VII to grant pregnant workers "most favored nation status," if even one non-pregnant employee outside of Walmart's TAD Policy is granted leave rights greater than a similarly disabled pregnant worker, then Walmart has impose a significant burden on pregnant workers which gives rise to an inference of intentional discrimination. 

The bottom line, given the legal uncertainty this case creates — if you have a pregnancy leave policy that treats pregnant employees less favorably than other similarly disabled employees, pick up your employment law Bat Phone and call your employment lawyer to review your policies for legal compliance. Or, just don't treat pregnant employees worse than other employees. Your call.