The recent opinion of the United States District Court for the Northern District of Illinois in Woodard v. Rest Haven Christian Services, 2009 703270 (N.D. Ill. 2009), acknowledged but did not resolve an interesting circuit split on the following issue: When a plaintiff brings an employment discrimination claim under the Pregnancy Discrimination Act, whom should the court deem similarly situated to the plaintiff? According to some courts, the only appropriate comparators are those who became disabled off the job. According to other courts, the similarly-situated analysis should be done by looking to any other employee who has an equivalent ability (or inability) to perform the job, including those who became temporarily disabled due to a workplace injury while on the job.
In Woodard,
Woodard was employed with Rest Haven from 2002 to some time in 2006 as a Certified Nursing Assistant….Woodard became pregnant near the end of 2005, and on February 24, 2006, she gave her supervisor a note from her doctor which stated that “My patient is pregnant and is required to be on light duty, ‘sitting mostly’ until the end of her pregnancy.” The parties refer[red] to this as a request for “light duty.” Rest Haven declined to accommodate this request as written, and did not seek any clarification from Woodard or from Woodard’s doctor as to the precise limitations Woodard’s pregnancy required. Woodard was not permitted to work on February 24, 2006, and was taken off of Rest Haven‘s work schedule. Neither party suggests that Woodard’s performance prior to February 24, 2006 was deficient. The parties dispute[d] why Rest Haven declined to accommodate Woodard’s request. Rest Haven t[ook] the position that it has a non-written policy whereby it will accommodate only light duty requests made by employees who are injured on the job….Woodard dispute[d] that the policy exist[ed], and even assuming it d[id] exist, Woodard argue[d] that it [wa]s not uniformly applied. Woodard contend[ed] that the reason for the denial [wa]s that Rest Haven discriminates on the basis of pregnancy.
After Woodard sued Rest Haven under the Pregnancy Discrimination Act, seeking relief under theories of disparate treatment and disparate impact, Rest Haven moved for summary judgment. And while the court granted that motion with regard to Woodard’s disparate impact claim, it denied it with regard to her disparate treatment claim after applying the McDonnell Douglas framework and deciding that Woodard had established a prima facie case of discrimination.
The fourth element of a prima facie case is whether similarly situated employees have received more favorable treatment, and this is where the circuit split came into play. The Northern District of Illinois noted that some courts, such as the Eleventh Circuit in Spivey v. Beverly Enterprises, 196 F.3d 1309 (11th Cir. 1999), have found that the only appropriate comparators are those who became disabled off the job because “to hold to the contrary would grant a pregnant woman an inappropriate preference – i.e., she would be treated like those injured on the job, even though her disability originated off the job.” (emphases added).
Other courts, however, have held that the similarly-situated analysis should be done by looking to any other employee who has an equivalent ability (or inability) to perform the job, including those who became temporarily disabled due to a workplace injury for two reasons. First, as the Sixth Circuit noted in Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), such an analysis makes sense because the text of the Pregnancy Discrimination Act itself indicates that a person protected under it “shall be treated the same…as other persons not so affected but similar in their ability or inability to work.”
Second as the Tenth Circuit noted in E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000), albeit in dicta,
If a plaintiff is compared only to non-pregnant employees injured off the job, her case would be “short circuited” at the prima facie stage and she would be denied the opportunity to show that the policy, which may be facially neutral, is actually a pretext for unlawful discrimination.
This second line of precedent seems more persuasive to me, but the Northern District of Illinois did not have to resolve the split because it found that Woodard “presented evidence-albeit scant-of individuals who were treated more favorably then she when they became temporarily disabled off the job.” (emphasis added). It will be interesting to see which side of the split who do have to resolve the issue will fall in cases to come.
-Colin Miller
