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“Lieutenant, I have some exciting news, and I wanted to let you know first before word spread through the department; my husband and I are expecting our first child.” “Congratulations, Officer Smith, that is exciting news. We’ll have to talk at some point about how you want to handle your work responsibilities.” “Well, Lieutenant, I was hoping that as the pregnancy proceeds, I could go on light duty.” The preceding dialogue illustrates a common personnel issue that arises in law enforcement agencies more so today than ever before. How should the law enforcement manager handle this situation? Should the manager immediately take action to minimize the risk to the mother and unborn child? Is there a legal entitlement to such a response? Is there a legal entitlement to a light-duty assignment because of pregnancy? This article addresses the minimum that is legally required of an employer facing a situation involving a pregnant employee. It also discusses what is not legally required, clarifying possible perceptions of preferential treatment when dealing with pregnancy and pregnancy-related conditions.

The condition of pregnancy presents a unique challenge within the context of discrimination. Title VII of the Civil Rights Act of 1964 (hereafter Title VII) includes sex within its protected characteristics.1 While Congress specifically included sex within the scope of Title VII, uncertainty initially existed as to whether pregnancy fell within its coverage. In 1975, early guidance from the Equal Employment Opportunity Commission (EEOC) suggested that pregnancy and other pregnancyrelated conditions were to be included within Title VII’s coverage.2 However, this was shortlived because the U.S. Supreme Court was about to rule in what became a controversial decision in which the Court concluded that pregnancy discrimination was not discrimination based on sex.

In 1976, the Supreme Court addressed the scope of the prohibition against discrimination on the basis of sex and whether pregnancy and pregnancy-related conditions fell within its parameters in General Electric Co. v. Gilbert.3 In Gilbert, the employer’s benefits program was alleged to be discriminatory in violation of Title VII as it excluded pregnancy and pregnancy-related conditions from its coverage while including other nonoccupational illnesses and accidents. Females alleged that the practice of offering unequal benefits based on pregnancy amounted to discrimination in violation of Title VII.4 The Supreme Court ruled against the class of females, concluding that the employer’s treatment of pregnancy was not genderbased but, rather, constituted different treatment between those who are pregnant and nonpregnant, regardless of sex. The fact that only women could become pregnant did not support a conclusion that the different treatment was genderbased.5

In response to the Gilbert decision, Congress amended Title VII by passing the Pregnancy Discrimination Act of 1978.6 In this Act, Congress amended Title VII to provide that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”7

Guarantee of Equal, Not Special, Treatment

The mandate of the Pregnancy Discrimination Act is consistently interpreted as requiring equal treatment as opposed to special or preferential treatment. As described by one federal circuit court:

[T]he Pregnancy Discrimination Act does not require preferential treatment for pregnant employees. Rather, it mandates that employers treat pregnant employees the same as nonpregnant employees who are similarly situated with respect to their ability to work [emphasis supplied].8

For example, in Tysinger v. Police Department of the City of Zanesville? Officer Teresa Tysinger, an 8-year veteran police officer with the Zanesville Police Department, alleged unlawful pregnancy discrimination after her department refused to assign her to a lightduty assignment that she sought on account of her pregnancy. After discovering that she was pregnant, she expressed concern to her employer that some of her duties, such as dealing with suspects and pushing vehicles, might place her unborn child in danger. At that time, she discussed possible alternative work assignments with her employer, but no further action was taken.10 Approximately 1 month after disclosing that she was pregnant, she was involved in an altercation with a suspect. This prompted her doctor to write a letter to her employer requesting work restrictions, including a request that she be placed on light duty during the remainder of her pregnancy. The officer presented this letter to the chief who informed her that, consistent with a citywide policy of no light duty, there was no light-duty assignment within the department and that she would have to be off work until after her pregnancy and able to return to full duty.11 web site countdown to pregnancy

Officer Tysinger’s leave of absence began in September 2000, continued until she returned to work in June 2001, and consisted of both paid and unpaid leave. In conjunction with her return to work, she brought an action against the city of Zanesville, alleging unlawful sex discrimination in violation of Title VII when it failed to accommodate her pregnancy by reassigning her to another position that she could perform, despite the fact that it had made such accommodations in the past for both pregnant and nonpregnant employees.

In support of her claim, she provided two comparables in an effort to establish that she had been treated differently from other officers who were similarly situated. The court concluded that her examples failed to support her claim as the officers were not granted more favorable treatment. In the cases that she alleged proved discrimination, both officers continued performing their normal duties despite suffering from some type of physical injury. Neither officer had received an accommodation of light nor restricted duty. As stated by the court:

Despite their temporary infirmities, they presented themselves to their employer as willing and able to continue working in their normal capacities. Tysinger, on the other hand, distinguished herself by asserting the need for and requesting a temporary alteration in her job duties. In this respect, she sought from her employer not the same or equal treatment…but more favorable treatment (emphasis supplied).12

The sensitivity of Officer Tysinger’s situation was not discounted by the court. As stated by the court, “Tysinger is not to be faulted for asserting her physician-prescribed need for light duty.”13 While other officers might have assumed the risk that they could perform their duties despite a physical limitation, Officer Tysinger had to take into account the health and well-being of her unborn child. The court went on to state:

This interest undeniably deserved and arguably even demanded her preferential treatment. However, the law, rightly or wrongly, does not extend this preferential obligation to the employer. A pregnant employee’s employer is required only to afford equal treatment, not preferential treatment.14

Consistent with the mandate of equal, not special, treatment is the principle that employer decisions motivated by paternalistic notions of pregnancy and benevolence also violate the Pregnancy Discrimination Act. For example, in the dialogue introducing this topic at the beginning of the article, the agency’s decision to immediately transfer the officer to an assignment that is less demanding and risky out of a sense of duty to protect the officer’s unborn child would violate the Pregnancy Discrimination Act.15

Light Duty for On-the-Job Injuries

While the Pregnancy Discrimination Act does not require an employer to adopt a lightduty program, it may impact how it is managed. One issue that arises is whether a lightduty program that only offers light-duty assignments to those injured on the job violates the Pregnancy Discrimination Act. Courts that have addressed this issue have reached conflicting results. The majority of courts that have addressed this issue have concluded that because the policy does not deny light duty due to pregnancy but, rather, how the disabling condition occurred, it is not unlawful pregnancy discrimination to offer light duty for onthe-job injuries only.16 In reaching this conclusion, one court commented that “[the employer] treated [the employee] the same as it treats any other worker who suffered an injury off duty.”17

A different result was reached by the Sixth Circuit Court of Appeals in EnsleyGaines v. Runyon.18 In this case, a U.S. Postal Service policy of granting limited duty assignments to occupational injuries only and light duty to any other employee was challenged by a pregnant employee. The employee argued that because limited-duty assignments were entitlements, while light duty was solely within the discretion of management based on work needs, the policy amounted to unlawful discrimination as she was denied a work benefit due to her pregnancy.19 The Sixth Circuit concluded that the employee had met her burden of proof, establishing a prima facie case of unlawful discrimination as the employer’s policy treated pregnant employees differently from employees injured on the job. The Sixth Circuit reasoned that the Pregnancy Discrimination Act requires employers to treat pregnant employees the same as those similarly situated in their ability or inability to do their job.20 Once established that the employees are similar in their ability or inability to do their job, the employer may not treat the nonpregnant employee more favorably than the pregnant employee.

Conditions Covered by the Pregnancy Discrimination Act

The protection against discrimination on the basis of pregnancy includes within its scope “women affected by pregnancy, childbirth, or related medical conditions.”21 For example, the Pregnancy Discrimination Act protection extends to potential pregnancy. A woman cannot be discriminated against on account of her prior use of maternity leave and the fact that she may become pregnant again.22 The protections afforded are limited, however, in the sense that they guarantee only equal treatment, not special treatment. For example, the decision to terminate an employee due to excessive absences, even if caused by pregnancy, is not a violation of the Pregnancy Discrimination Act provided similarly situated nonpregnant employees would have their use of leave scrutinized in a similar manner and suffer similar adverse consequences.23

Other aspects of maternal care have been determined to fall outside the scope of pregnancy-related conditions, including breast-feeding and time in which to pump breast milk at work. In McNiI v. New York City Department of Correction,24 a correction officer alleged unlawful discrimination after she was denied certain discretionary benefits due to being placed on a chronic absence list with her employer. The officer was determined to be medically disabled due to pregnancy and childbirth for a period of approximately 9 months. She was then determined to be fit for duty by her doctor. However, she continued to be absent from work for a period of 5 months to breastfeed her child. This resulted in her being placed on the chronic absence list and suffering adverse consequences as a result. Once she learned of her status on this list, she challenged the employer’s position, arguing that due to the special medical needs of her infant, she was medically required to breastfeed her son and thus, the action taken against her violated the Pregnancy Discrimination Act.25 The court held that her termination did not violate the statute because her desire to breastfeed her infant fell outside the scope of “pregnancy, childbirth or [a] related medical condition.” The court determined that decisions relating to breastfeeding and weaning a child are decisions about child rearing as opposed to conditions that directly relate to pregnancy and childbirth and, thus, are not within the scope of protections afforded by the Pregnancy Discrimination Act.26

Along similar lines, courts that have addressed the issue of a mother’s right to pump breast milk in the workplace have ruled that an employer is not legally obligated under the Pregnancy Discrimination Act or any other federal statute to provide time or space for an employee to pump breast milk.27 For example, in Martinez v. N. B.C., Inc.,28 an employee had received permission to go to an empty room and pump her breast milk three times a day for about 20 minutes each. She was able to lock the door; however, on several occasions, she was interrupted when people tried to get into the room. She thereafter demanded a special room free from interruption. This request was denied by her employer. Ultimately, she resigned from the company when she refused a change in assignment, citing child-care needs. She later sued, alleging a variety of discriminatory violations by her former employer, including a violation of the Americans with Disabilities Act (ADA) on account of the failure to accommodate her condition, as well as a violation of Title VII. this web site countdown to pregnancy

With respect to the ADA claim, the court rejected her argument that her employer had a duty to accommodate her condition and provide her with a secure, sanitary location to pump breast milk, citing a long line of cases that, absent unusual circumstances, pregnancy and pregnancy-related conditions are not disabilities within the meaning of the ADA.29

With regard to Title VII, the court disagreed with the former employee’s claim that she was unlawfully discriminated against on the basis of her gender and her desire to engage in an activity unique to her gender. The court rejected her argument that she was subjected to unfavorable treatment on account of her gender simply because she was adversely impacted by her employer on account of her desire to engage in an activity unique to women. The court observed that “if there is no comparable subclass of members of the opposite gender, the requisite comparison to the opposite gender is impossible.”30 Accordingly, the former employee cannot claim that she was treated unfairly as opposed to similarly situated men as any such comparison is inherently impossible.

Benefits Programs

Consistent with the mandate of equal but not preferential or special treatment, employerbenefit programs must treat the condition of pregnancy, childbirth, or related medical conditions the same as disabilities caused by other medical conditions. For example, any health insurance provided by an employer must cover the expenses associated with pregnancy on the same terms as other medical conditions. If benefits, such as accrual of seniority, vacation calculation, or pay increases, are provided to workers on leave for nonpregnancy-related disabilities, they must be given on the same terms and conditions for those on leave as a result of pregnancy or pregnancy-related conditions.31

Limited Preference and the Family Medical Leave Act

While a complete discussion of the Family Medical Leave Act (FMLA) is beyond the scope of this article, any discussion of pregnancy and pregnancy-related conditions should address provisions of the FMLA that relate to the care of a newborn.32 The FMLA entitles eligible employees to a minimum of unpaid leave (or paid leave if available) during any 12 weeks during any 12-month period on account of the birth of a child. Eligible employees are individuals who have been employed for at least 1 year by the employer and who have provided at least 1,250 hours of service during the previous 12-month period.33 Eligible employees are entitled to take off up to 12 weeks following the arrival of a newborn or the adoption of a child and retain their position with their employer. The form in which this leave is taken depends on the employee and the employer’s leave policies. Employees may elect to use accrued, personal, or sick leave for any or all of the 12-week period covered by the FMLA, or employers may require them to do so.34 The mandate of the FMLA is not to require employers to provide additional leave but, rather, to recognize the right to be absent from work for covered conditions or family needs. Additionally, the right to take time off for the purpose of caring for a newborn or the adoption of a child is not just maternal but also belongs to the father.

Conclusion

Because of the special physical demands placed on officers and the possibility of a violent confrontation at any time during the workday, law enforcement employers are faced with a complex situation when an officer announces that she is pregnant. The needs of law enforcement employers and their employees are unique. Understanding what the law requires and, equally important, what it does not require is critical when faced with these situations.

[Sidebar]

“The condition of pregnancy presents a unique challenge within the context of discrimination.”

Special Agent Baker is chief of the Legal Instruction Unit at the FBI Academy.

[Sidebar]

“…the right to take time off for the purpose of caring for a newborn or the adoption of a child is not just maternal but also belongs to the father.”

[Sidebar]

“A woman cannot be discriminated against on account of her prior use of maternity leave and the fact that she may become pregnant again.”

[Sidebar]

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

[Author Affiliation]

By LISA A. BAKER, J.D.