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Pregnancy leave, breastfeeding accommodation claims of Chicago paramedic survive dismissal

By Cynthia L. Hackerott, J.D.

Because she alleged enough facts to suggest a continuing violation, a Chicago paramedic could pursue Title VII and Illinois Human Rights Act (IHRA) claims related to a decision to place her on leave, ruled a federal district court in Illinois. However, because she did not allege any injury from the classification of her leave as off-duty after she returned to work, she failed to establish standing to pursue her claims arising from the classification. Accordingly, the court granted in part and denied in part the city’s motion to dismiss various claims regarding the city’s handling of her pregnancy leave and her need to pump breastmilk upon her return from pregnancy leave. The court ruled that the paramedic may pursue her disparate impact claim because she sufficiently alleged that a city assignment policy caused her injury. Finally, the court ruled that city failed to show that there is no private right of action under the Illinois Nursing Mothers in the Workplace Act (INMWA) (Spriesch v. City of Chicago, October 26, 2017, Ellis, S.).

Continuing violation. In June 2014, after the employee informed her supervisor she was pregnant, the supervisor asked her to go on leave immediately. She alleged that the city required her to stay on leave throughout her pregnancy and to report monthly in person or by phone to confirm she was still pregnant. In contrast to other city fire department employees who received temporary assignments, the city allegedly has a pattern and practice of placing pregnant employees on immediate leave. The employee claimed that the city violated Title VII and IHRA when it forced her to go on leave immediately after she told her supervisors that she was pregnant.

The city asserted that her claims were time-barred. Even assuming the city placed her on leave on the last day of June 2014 that alleged act of discrimination occurred 462 days before she filed her discrimination charge—well beyond the time for filing a charge under either statute. Still, the court found that the employee alleged enough facts to suggest a continuing violation, and so could pursue her claims related to the decision to place her on leave. She alleged that the city’s wrongdoing was ongoing because each month the city required that she check in, allow the city to confirm her pregnancy, and receive a determination on whether she would continue on leave. Moreover, her complaint could be read as alleging that each act of placing her on leave was a new wrong making the subsequent leave decisions within the limitations period actionable.

No standing as to leave designation claim. The employee gave birth to her child on February 4, 2015, and returned to work two months later on April 8, 2015. Upon her return, the city designated her leave as off-duty injury leave, which can be used for up to 12 months every two years, rather than on-the-job injury leave, which can be used for up to 12 months as often as is needed. The city has a pattern and practice of designating pregnancy leave as off-duty injury leave. The plaintiff used 308 days of leave. The plaintiff alleged that the city classifying her leave as off-duty injury leave was discriminatory because of the difference in her ability to use off-duty leave (renewable every two years) versus on-duty leave (unlimited). However, the court, agreeing with the city, found that the plaintiff did not establish standing to pursue her claims arising from the classification because she failed to allege any injury resulting from the difference between the off-duty classification and an on-duty classification. Nor could she allege she suffered an adverse employment action because of the classification.

Breaks to pump breastmilk. Because the employee was breastfeeding when she returned to work and could not breastfeed her child at work, she needed to pump breastmilk. Although she informed city fire department officials of this situation, no one told her about any accommodations for pumping. She needed to pass a re-training course to reenter the field, but was not allowed to pump and express breastmilk for hours. When she requested a reasonable accommodation for pumping and expressing breastmilk, the instructor in re-training required her to perform two more re-training days and required her to stay later than other employees. She submitted a union grievance and complained to the city’s EEO division.

IHRA reasonable accommodation claims. On January 1, 2015, Illinois amended the IHRA to require that employers provide reasonable accommodations for medical and other common conditions related to pregnancy or childbirth. The city argued that the plaintiff could not bring IHRA pregnancy accommodation claims based on acts that occurred before January 1, 2015 because the relevant amendment to the Act was not retroactive. Agreeing, the court explained that under Illinois law, new statutes do not apply retroactively unless the legislature expressly states that they do. The text of the IHRA statute itself does not clearly indicate the amendment’s temporal reach, and the plaintiff offered no proof of retroactive intent by the legislature when it enacted the January 1, 2015 amendment.

Temporary assignments. As a result of her leave, the employee lost her regular ambulance assignment and began receiving temporary firehouse assignments. Few relief pool firehouses provided access to a private, non-bathroom area for pumping and expressing breastmilk, resulting in the employee often having to pump in a restroom or ambulance and discard her breastmilk.

The plaintiff alleged that the city’s method for detailing shift assignments had a discriminatory impact on lactating female employees such as herself. Here, the employee’s contention that she was detailed to firehouses that could not safely accommodate her needs as a nursing mother were sufficient, at the pleading stage, to allege a discriminatory shift assignment policy. The allegations in the complaint provided the parties with enough factual content to conduct discovery on the policy, the court found. Further, her allegations were sufficient to show how the policy caused the wrongful injury to lactating women. She alleged that many firehouses do not have private, non-bathroom space and that senior officials acknowledged to her that she would be sent to those firehouses. On the other hand, other individuals had their shift assignments tailored to their needs.

Private right of action under the INMWA. The employee also sufficiently alleged a violation of the INMWA. Although the INMWA does not explicitly provide for a private right of action, the court explained that a private right of action may be implied. Here, the city argued that a private right of action under INMWA is not necessary because the IHRA already provides penalties for violations of INMWA. The court, however, pointed out that the Illinois test looks at whether or not the law in question already provides an effective remedy. In this instance, the city failed to argue whether the IHRA already provides an effective remedy that would preclude any need for an implied private right of action. Therefore, the court ruled that the plaintiff may proceed with her INMWA claim.