In 2017, Pregnancy Still Earns Women Pink Slips

In 2011, Eryon Luke got good news: She was pregnant with twins. Along with the happy test results, though, came an instruction from Luke’s doctor not to lift more than 30 pounds. It’s a common warning for pregnant women like Ms. Luke who work in physically demanding jobs — in her case, as a Certified Nursing Assistant (CNA) at Nottingham Regional Rehab Center in Baton Rouge, Louisiana.

But when Ms. Luke told her supervisor about her restriction, instead of discussing options that would allow her to keep working, her boss simply told her to go home. By the time Ms. Luke’s unpaid leave ran out, she was still pregnant and still had a lifting restriction. Still unwilling to assign her modified job duties, Nottingham fired her instead. By the time she had her babies, Ms. Luke hadn’t received a paycheck in months.

Congress passed the Pregnancy Discrimination Act (PDA) almost 40 years ago to ensure that pregnancy didn’t force women out of work. But as Eryon Luke’s story shows, that promise has yet to be fulfilled. Under the PDA, employers must treat pregnant women who have temporary physical restrictions the same as they treat other workers “similar in their ability or inability to work.” So if an employer allows reassignment to “light duty” work or makes similar accommodations for those workers, then it must do so for pregnant employees, too.

In 2015, the Supreme Court addressed the issue in 
Young v. United Parcel Service, Inc., and held that if an employer refuses to accommodate a pregnant worker on the same terms as her peers, it must have a reason that is “sufficiently strong” to justify that decision. Notably, the court emphasized that merely citing the cost or inconvenience of keeping a pregnant woman in her job is not a “strong” enough reason to satisfy an employer’s obligations under the PDA.

By the time she had her babies, Eryon Luke hadn’t received a paycheck in months.

But the court that heard Eryon Luke’s case got the Young standard wrong. Even though Nottingham had a written policy of accommodating workers with ADA-qualifying impairments and also had allowed Ms. Luke’s coworkers — and Ms. Luke, herself, before she was pregnant — to get assistance with lifting, the court ruled that Ms. Luke hadn’t presented enough evidence of differential treatment. Based on this finding, the court wouldn’t even look at whether Nottingham could have found a way to keep Ms. Luke on the job, even though the facility had other methods available to move patients, such as mechanical lifts.

The court’s dismissal of Ms. Luke’s case didn’t just deprive her of her day in court. It also will dictate how future judges in Louisiana will evaluate future pregnant women’s claims that they were unlawfully forced off the job. So when Ms. Luke appealed the lower court’s ruling to the U.S. Appeals Court for the Fifth Circuit, the ACLU Women’s Rights Project took action. Together with advocacy groups A Better Balance and the Center for WorkLife Law, it penned a friend of the court brief on behalf of a broad coalition of 25 women’s and workers’ rights groups arguing that the trial court misapplied Young — and by extension the PDA itself — and should be reversed.

Tomorrow the Fifth Circuit will hear oral argument in the case. In addition to Ms. Luke’s counsel, the court agreed to grant argument time to the ACLU’s Women’s Right Project as “friends of the court.” It is only the fourth time an appellate court has addressed the issue of pregnancy accommodation under the PDA since the Supreme Court’s landmark ruling in Young. A favorable ruling will not only set the standard for local courts to follow, but it also will set an example for courts around the country to follow as they consider, for the first time since Young was decided, the PDA claims of countless other women whose pregnancies cost them their jobs.

For over 45 years, the ACLU Women’s Rights Project has been dedicated to combating the discrimination that keeps pregnant women out of the workforce. We are supporting Eryon Luke today to ensure that in 2017 pregnant women aren’t kept out of the courthouse, too.

If you have been forced off the job due to pregnancy, we want to hear from you – please fill out our survey.

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Anonymous

Joking about someone being shot - to their face? Really? How is that decent? Just because you CAN exercise your free speech doesn't mean every little obnoxious thing you can think of should come out of your mouth, troll.

Anonymous

5th Circuit? Good luck with that right wing cesspool. That's the court that upheld Texas SB2.

Anonymous

I worked for Access Destination Management in Chicago, that's ACCESS DMC CHICAGO. I was put on bed rest at 6 months pregnant and fired as a result. Pregnancy has an end date and I could have easily done my job from home. Again, ACCESS DMC CHICAGO. I suggest never using them as a company.

Anonymous

I was forced from my full time position into a part time position when I was pregnant with my fist child. I ended up having to get a second job so our family could make ends meet.

Anonymous

this happens to people with medical problems all the time. my cousin had cancer and was let go due to downsizing but it really was because she missed too much work. also happened to a friend of mine because of liver disease, again she was downsized. so it is not only pregnant women

Anonymous

One problem with all these "protection" laws is that they are completely unconstitutional by any reasonable reading (not that anyone cares about that any more). Another problem is that any person who is "protected" loses value in the free market, making employment for them difficult. My own wife once swore she would never hire another woman, after her project schedule was ruined by one employee taking advantage of Oregon's overly-generous pregnancy leave laws.

People in government do not care about pregnant women. They don't work for us. They act in their own interest.

Anonymous

Those that want to be hateful... that's all you have going for you. People get pregnant. People get injured. They get fired in the hospital. They still have more going for them than weak, pathetic people who need to hate to feel better about themselves.

Brittany

I am saddened by these comments. We all live in the same nation and should care for one another. I will gladly pay taxes for one to have a baby, or for one to receive disability. We are all in this together, or at least we should be. Some people are bored and so insecure that it makes them hateful. Who ever the person is making those comments, I feel bad for you. Really bad for you. I don't know what has happened in your life that has made you so callus and hateful, but I'm sorry. I hope you can find people who will be willing to help you, should you ever get shot in the back, become pregnant whether it be you or your significant other or find yourself in a stressful situation. Shame on anyone for not helping you if a stressful situation/s has already taken place in your life. You deserve better. So do our fellow brothers and sister of OUR Nation.

Anonymous

Thank you, Brittany. Finally someone with a heart. People have babies. To the other short-sighted commenters, shall we just go back to the dark ages and just tell women to stay at home and have babies since their pregnancies are such an 'inconvenience' in the work place? Of course, that means the men responsible for those babies have to make more money to support both mom and baby. Those that claim having a baby is a choice are probably the same Christians who don't believe in birth control (but Viagra is okay). Geez. You are, we all are, a part of a society, not a one-man show. Supporting the community around you, whether you partake in all that it has to offer (i.e. paying school taxes if you don't have children), is how it works. A good school draws people and businesses to your community. It benefits everyone. You like having running water and a toilet, but bitch about having to pay a utility bill? Then don't complain about the sewer overflow caused by old pipes that you refuse to pay for. They don't maintain themselves.

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