Pregnant on patrol: What officers and administrators need to know
A recent Supreme Court case and proposed legislation raise new questions about when and how employers must accommodate pregnancy
“As I travel throughout the United States, what to do with a pregnant police officer is still one of the most poorly handled, contentious, and misunderstood issues in law enforcement,” says Betsy Brantner-Smith, a 29-year veteran who worked in patrol, investigations, narcotics, hostage negotiation, field training, and with juvenile offenders. She’s published hundreds of policing articles and is an internationally in-demand trainer. She’s also been a pregnant cop and mom.
Recent headlines and lawsuits confirm pregnant cops, departments, and their governments are still struggling:
- Ex-Fairport officer files discrimination lawsuit, March 2016 (alleges department discriminated in failing to provide light duty assignment)
- Morris Township cop claims discrimination over pregnancy, Dec. 2015 (alleging insulting comments, denial of days off, loss of school resource position because of pregnancy)
- Officer returns to work after settling pregnancy lawsuit, Nov. 2015 (union and picketers force settlement after pregnant officer required to stay home by township administrator)
- Hudson County settles with corrections officer for $150K over handling of her pregnancy, Aug. 2014 (department refused to reassign high risk pregnancy away from inmates; department failed condition of settlement to provide area for expression of breast milk)
The Family and Medical Leave Act provides covered workers with a right to 12 weeks of job-protected, unpaid leave for medical appointments, childbirth, and bonding with a new child, among other reasons. The Americans with Disabilities Act does not recognize pregnancy itself as a disability, but pregnancy related impairments may qualify if they substantially limit a major life activity. And the Fair Labor Standards Act provides nonexempt workers unpaid break time to express breast milk.
This article’s focus is the federal Pregnancy Discrimination Act (PDA) which requires employers to treat women affected by pregnancy-related conditions the same as all other applicants and employees as it pertains to their ability or inability to work and perform certain job-related functions. It doesn’t require employers make any special accommodations to pregnant employees — only that they be treated as well as other employees with a temporary disability.
Departments can’t treat pregnant officers as automatically disabled — there was a DOJ consent decree over a sheriff’s requirement to report pregnancy and immediately relinquish full-duty status or commence leave. Nor can departments have fetal protection policies that exclude pregnant officers from certain hazardous work, even if the intent of the policy is benevolent. Such decisions by employers must be based on the employee’s ability to do the job.
Further, a department cannot:
1. Refuse to hold a job for an employee on maternity leave if it protects the jobs of others who are temporarily disabled
2. Deny seniority status upon return from maternity leave, unless others on disability leave are treated similarly
3. Refuse to grant pension service time for the period of maternity leave unless other disabled employees are similarly disadvantaged
Disparate Treatment vs. Disparate Impact
The PDA is based on an “equal treatment model” — those who are similarly situated should be treated alike. It prohibits “disparate treatment” of similarly situated employees. Because only women can get pregnant, some have argued the equal treatment model doesn’t effectively address the unique issues pregnancy presents in the workplace.
Courts have previously recognized that equal treatment can result in “disparate impact.” A rule which appears neutral — all police officers and firefighters must be six feet tall and weigh at least 160 pounds — would obviously have a “disparate impact” on women and would be prohibited unless the employer could show that it was a “business necessity.”
Just last year the Supreme Court ventured into the notion of disparate impact in the context of the PDA. In Young v. United Parcel Service, Peggy Young asserted a “disparate treatment” claim when her employer refused to provide her a temporary alternative work assignment to accommodate her doctor’s prescribed weight lifting restriction during her pregnancy. Young noted that UPS accommodated other drivers with similar restrictions not due to pregnancy.
UPS countered it accommodated such restrictions for only a few small classes of employees — for example, those injured on the job. Because it didn’t accommodate lifting restrictions for any employees not in the specified classes, UPS argued it had not discriminated against Young based on her pregnancy.
This is where things got really technical and complicated. Click here if you want to read a thorough legal analysis of the opinion and its implications for the PDA. The Supreme Court didn’t buy either side’s arguments completely and ended up sending the case back for more factual findings consistent.
Important for employers who want to stay ahead of the litigation curve, however, was Justice Breyer’s comment to Young’s lawyer during oral argument. There was a “quite easy way for you to win,” Breyer said, “and that would be to bring a disparate impact claim.”
Justice Breyer’s comment received scant attention. Probably because it was past time that Young might’ve amended her complaint. But that won’t restrict future claims.
Congress may resolve the questions remaining after Young v. UPS regarding whether employers have affirmative obligations to provide reasonable accommodations to pregnant employees. Several Members of Congress have proposed such legislation, the most prominent being the Pregnant Workers Fairness Act.
Departments that see the value of recruiting and retaining women would do well to develop policies that, to quote the IACP, “Ensure a woman’s right to work free from discrimination and to protect the property interest she has in her job, while guarding against the risks inherent in the performance of her duties.”
In the wake of Young v. UPS and in advance of a Pregnant Workers Fairness Act, it would behoove departments to also examine whether their policies, while appearing non-discriminatory, have a disparate impact on pregnant officers. In States Cracking Down on Pregnancy Discrimination, the author provides six points for employers to consider in developing or evaluating their policies.
If your department doesn’t have a policy, follow Betsy Brantner-Smith’s advice and write one. Do your research (I’ve provided some resources in the sidebar) and talk to other agencies (Betsy says the Dallas and Fort Worth PDs have good models). Explain in writing why the policy is necessary and how it will benefit the agency and other employees. Then be professional and tenacious.