ASKED & ANSWERED: Nick Roumel on pregnancy discrimination case

By Jo Mathis Legal News Ann Arbor attorney Nick Roumel recently won a pregnancy discrimination appeal to the U.S. 6th Circuit Court of Appeals with a unanimous reversal of the federal district court. Roumel represented a certified nursing assistant who was fired from a nursing home, although she was capable of performing her job. The court held that the nursing home's decision to implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace injuries, even if those restrictions do not limit the employees' ability to competently perform their jobs, "is so lacking in merit as to be a pretext for discrimination." The Legal News asked Roumel about this issue, and whether employers can have "facially neutral" policies that operate to discriminate against pregnant workers. Mathis: Why did you take on this case? Roumel: Jennifer Latowski is the reason I took this case. She is the plaintiff and absolutely amazing. She was referred to me by a colleague who used to employ her in his law office. She had since married an Iraqi war veteran and moved to northern Michigan, where she worked as a Certified Nursing Assistant. They fired her when she was pregnant with her first child. Completely on her own, Jennifer not only filed a complaint with the Equal Employment Opportunity Commission - which found in her favor - but also her own lawsuit in the federal district court. I stepped in to assist her at that point. Mathis: What was the case about? Roumel: The nursing home had a policy where they required all pregnant workers to obtain a doctor's note that certified they had no medical restrictions, even if the workers did not ask for any restriction or accommodation, like Jennifer. So her doctor's office faxed a note, as demanded by the employer. It stated "no restrictions except no lifting over 50 lbs." Because of that restriction, the employer fired her. Mathis: But couldn't that be considered a smart decision by an employer hoping to avoid liability, from allowing a pregnant CNA to continue working with a lifting restriction? Roumel: That was what they argued. However, there was sufficient evidence that this justification was pretext. The nursing home was referred to as a "no lift" facility, with plenty of adaptive aids to assist CNA's, like the 5-foot-3-inch Jennifer, as they tended to the resident's needs. "Lifting" was not even mentioned in the two-page job description. Jennifer had passed an "essential functions" test just two weeks before her termination. She was fully capable of performing all her job requirements. In addition, Jennifer's managers made certain comments that could be evidence of discrimination, including, "You don't want to lose your baby," "We would be liable if something happened to your baby," and "Your belly would be in the way of performing your job." Mathis: What does the Pregnancy Discrimination Act (PDA) say? Roumel: The PDA amended Title VII's sex discrimination provisions in 1976 to read, (1) "[t]he terms 'because of sex' or 'on the basis of sex'" include "because of pregnancy, childbirth or related medical conditions "and (2) "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work." Mathis: Do you really think this nursing home intended to discriminate against Jennifer? Roumel: I do, although they deny it. They argued that their policy was "pregnancy-blind," and that they treated pregnant CNA's the same as employees who had restrictions due to injuries or illness outside the workplace. (Yet they allowed employees with workplace injuries to have light duty, so they wouldn't have to pay workers' compensation wage loss benefits.) Their business decisions were all about avoiding liability, and based on stereotypical assumptions about what pregnant women are or are not capable of. Such attitudes have no place in today's workplace, where they result in firing good workers who are fully capable of performing their job. Mathis: How are other courts dealing with this issue? Roumel: Other U.S. Circuit Courts have made decisions that are less friendly to pregnant workers, allowing policies that bar pregnant women from working as long as they are treated the same as those with other non-workplace injuries. I spoke with a University of Michigan law professor who is working on one of those cases, and appealing an unfavorable decision from the 4th Circuit to the U.S. Supreme Court, where that pregnant plaintiff was terminated although certain classes of other restricted workers were allowed to continue working. Also, the Michigan ACLU is working on a case where a pregnant worker was barred because of a similar policy. The Supremes may ultimately deal with the broader issue, of whether pregnancy can be considered the same as a non-workplace injury and less favorably than workplace injuries. However, Jennifer's case is a bit unique because she never asked for restrictions, and there is plenty of evidence that the nursing home's lifting restrictions here are not legitimate. Her Court of Appeals panel seemed to recognize this and crafted a decision that was somewhat narrow in this regard. This may be enough to allow it to be resolved on its own merits, and insulate it from the impact of other decisions. Mathis: What's next? Roumel: The employer has asked the Court of Appeals panel that decided the case for a rehearing, and that is pending. If that is denied, they can ask the entire Court of Appeals en banc to rehear the case, and/or go to the U.S. Supreme Court. After their appeals are exhausted, assuming no change in the Court of Appeals decision, the case will be remanded to the district court for trial. Published: Fri, Feb 28, 2014

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