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Pregnant housekeeper, terminated despite waiving doctor’s restrictions on working with cleaning chemicals, states PDA claim

By Brandi O. Brown, J.D.

Material fact disputes existed as to whether a property management firm discriminated against a pregnant employee by deferring to her doctor’s pregnancy-based medical restrictions and by refusing to allow her to waive those restrictions, which included limiting her exposure to chemicals in cleaning supplies, a federal district court in Maryland ruled. It denied cross-motions for summary judgment filed by the EEOC and the employer on the Pregnancy Discrimination Act claim (EEOC v Greystar Management Services LP, December 18, 2013, Hollander, E).

Pregnancy, doctor’s letters. The employee began working as a housekeeper for the employer, a multi-family property management company, in August 2008. On February 3, 2009, she was given a verbal warning regarding her work. Upon receiving the warning, she informed her supervisor and the community director that she was pregnant. She indicated her concern about working around cleaning chemicals during her pregnancy and proposed an accommodation. She was asked to provide a doctor’s note specifying what work she was capable of doing. Immediately after the conversation, she was transitioned to tasks that did not require chemical exposure.

On February 6, she produced a doctor’s note setting forth a medical restriction minimizing exposure to chemicals. Finding that the note was too vague, the employer requested a second note. The housekeeper then expressed a willingness to resume some of her prior responsibilities. Nevertheless, she was not allowed to resume any work that involved any product or chemical. She provided another doctor’s note on February 17, which stated that her exposure to chemicals had to be kept to ten percent or less total time.

The employer determined that it was impossible to eliminate the use of chemicals and concluded it could not retain the employee in her housekeeping role. Though the parties’ disputed the extent to which she subsequently sought to waive her accommodation request, the employer refused to allow her to perform work that contradicted the physician’s instructions.

On February 23, the employee was placed on unpaid personal leave. On March 9, her last day of work, she was told she would be placed on unpaid leave of absence until her physician cleared her return. She was further told she could reapply once she was able to resume working with cleaning chemicals. On March 10, the employer received a third letter from her physician; however, the letter did not provide any information beyond what had already been conveyed. Although the employer subsequently sent a list of cleaning products to the physician’s office, the doctor did not change the medical restrictions. The housekeeper was not called back to work following her pregnancy.

Direct evidence. Contending there was direct evidence of discrimination, the EEOC argued that the employer’s approach to pregnant workers was to focus on protecting the fetus, pointing specifically to testimony by the company’s former HR director. At the outset, the court noted that his statements were not the sort of “stray remarks” incapable of qualifying as direct evidence, on their own. The comments at issue were neither passing remarks made in the workplace nor generalized statements about pregnant employees; rather, they concerned the employer’s actions toward the employee in particular.

In the court’s view, the first comment, in which the director said that the employer had knowledge that the employee may be damaging her own health or the health of the child, was ambiguous. However, the second statement was not. There, the director stated that the employer “tried to seek counsel from her treating physician so that we would not put her or her unborn child in any kind of danger or injury or birth defect.” In that excerpt from the director’s testimony, he “expressly referred to several perceived dangers that are specific to pregnancy.” This suggested that the employer may have approached her situation the way it did because of the housekeeper’s pregnancy. In other words, the court stated, his statements were consistent with a heightened sensitivity to pregnant women, such that the employer would have afforded greater deference to a pregnant worker’s medical restrictions than to those of its other employees. Although other statements presented by the EEOC were unavailing as direct evidence, the EEOC had presented sufficient evidence to create a genuine issue of material fact as to whether the undisputedly adverse employment decision was motivated by an impermissible factor. Accordingly, the EEOC defeated the employer’s summary judgment motion.

Waiver of medical restriction. The employer contended that the employee was placed on leave not because of her pregnancy, but only because her medical restriction made her unable to perform her job responsibilities as a housekeeper. It further argued that it was entitled to rely on the doctor’s notes. The EEOC asserted, however, that the employer could not “bootstrap” these doctor’s notes into an argument that the employee could not do her job without also arguing, impermissibly, “that maternal and fetal safety are the essence of her job.”

The court noted there was considerable authority indicating that an employer can defer to a physician’s restrictions imposed on an employee and that it was well-established that a pregnant employee’s inability to perform required job functions can justify a lawful decision to take an adverse employment action. According to the EEOC, however, the employee was entitled to withdraw the doctor’s notes and choose to continue to work. Yet in the employer’s view, the EEOC was asserting that an employer must disregard medical notes, even where the medical certification concluded that the employee was medically incapable of performing the job.

The parties also disagreed about the extent to which the housekeeper actually requested waiver of the doctor’s notes. In a declaration authored three years after the relevant events, the employee stated that she was willing to work “without any restriction” and with all of the employer’s cleaning products as long as she could wear a mask and gloves. Declining to exercise the sham affidavit rule, the court determined that the discrepancies between the declaration and her deposition testimony did not rise to a level that compelled the court to disregard her declaration. Moreover, the court noted that, at least for some time period, the community director appeared to have acted under the assumption that the employee was seeking to fully waive her medical restriction.

The court reviewed much of the relevant caselaw, including the Supreme Court’s decision in Automobile Workers v Johnson Controls, Inc, which was central to the case. In that case, the employer imposed safety-based work restrictions on all female employees of child-bearing age. Here, though, unlike in Johnson Controls, the employer had no policy barring fertile women or even pregnant women from working. At most, it had a practice pertaining to all workers, by which medical notes were requested from employees who were unable to perform their duties for medical reasons. The EEOC failed to point to any evidence that the employer permitted any employee to waive a doctor’s restrictions. Moreover, its approach to its other employees, male and female, strengthened its claim that it did not treat the employee in a discriminatory manner based on her pregnancy.

Finally, case law under the ADA supported the employer’s argument that deferring to the doctor’s notes was legitimate and lawful, even in light of the employee’s attempt to waive her medical restriction.

Paternalistic fetal protection. The court determined that Title VII cases involving medical restrictions where the court found against the employer were factually distinct from this case. In one case from the Eighth Circuit, the employee was capable of performing her normal job responsibilities in a manner consistent with her medical restrictions. In another case from the Fourth Circuit, the employer had invoked a business necessity defense. Unlike that case, here the record was devoid of evidence showing that the employer determined, independently of her physician, that the health of the employee or her fetus required the employer’s intervention.

This case also did not present a situation in which an employer decided of its own initiative to keep a pregnant employee from working without first getting a medical opinion. In this case, the employer only requested a note in response to her request for an accommodation. Because the facts fell short of warranting summary judgment, the court also could not grant the EEOC’s competing summary judgment motion.