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.

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