CHICAGO (CN) — Between 2014 and 2017, retail conglomerate Walmart denied the requests of 11 pregnant employees working at a distribution warehouse in Menomonie, Wisconsin, to be assigned light work duties. These employees were instead put on leave, a move the Equal Employment Opportunity Commission argues was discriminatory.
"Walmart had unlimited light duty positions available, yet refused to accommodate pregnant employees with light duty, even as it accommodated other employees who were similar in their ability or inability to work," EEOC attorney James Driscoll-MacEachron told a Seventh Circuit panel Thursday.
To bolster his case, Driscoll-MacEachron pointed out that at the same distribution center and in the same span of time, Walmart allowed every nonpregnant worker who was injured on the job to take light duty if they requested it – a total of about 89 workers. He also noted that Walmart voluntarily changed its policies in 2017 to allow pregnant employees to take on more light duties.
In its 2018 complaint filed in Madison federal court, the EEOC elaborated its point even further. By forcing the pregnant employees to use their accrued time off or placing them on unpaid medical leave, it claims Walmart violated the stipulations protecting the rights of pregnant workers that were first established in the 1978 Pregnancy Discrimination Act.
According to the EEOC, the law "forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment."
The EEOC also argued that Walmart's actions contravened the U.S. Supreme Court's 2015 decision in the similar pregnancy labor case Young v. United Parcel Service, which held that employers must provide legitimate nondiscriminatory justification for not accommodating pregnant workers. Per Young, "cost and inconvenience are not good enough reasons" to deny pregnant workers light duty when they request it.
Senior U.S. District Judge Barbara Crabb didn't buy it. In her 2021 ruling rejecting the EEOC's claims, the Jimmy Carter appointee pointed out that Walmart's national transitional alternative duty, or TAD, policy, which allows workers injured on the job to be accommodated for light duty, didn't apply to workers who accrued injuries or conditions off the job.
She also criticized the commission for trying to establish a pattern of pregnancy discrimination within Walmart by listing examples of employees - including some of the 11 workers the EEOC represents - who were denied breaks or clean spaces for breastfeeding. This, she opined, was a categorically different issue than that of workers whose pregnancy physically prevented them from carrying out heavier job duties.
"The claimants in this case sought modifications to their job duties, such as the weight of products they were required to lift or amount of time they were required to stand, whereas breastfeeding associates sought the ability to take short breaks from work and a clean and private space in which to express milk," Crabb wrote. "Pregnant employees with medical restrictions and employees who are breastfeeding are subject to separate employment policies and types of accommodation that are administered by different decision makers."
Before the Seventh Circuit on Thursday, Driscoll-MacEachron avoided broaching the issue of breastfeeding, hewing instead to the procedural steps in Young that outline how pregnant employees can determine if they have been treated unfairly by their employers. He argued that in violation of Young, Walmart failed to explain to its pregnant workers why they were being denied light duty. Instead, he argued, the company merely repeated the rote text of its TAD policy.
"Contrary to Walmart's position, Young does require the employer to actually articulate a reason for denying an accommodation to pregnant employees... it must justify its refusal," Driscoll-MacEachron said.
U.S. Circuit Judge David Hamilton, a Barack Obama appointee, took issue with this argument. He pointed out, as Crabb did, that Walmart's TAD policy is intended for workplace injuries only.
"It's hard for me to see what's unreasonable or unfairly discriminatory about a policy that simply tries to minimize and manage [workplace injuries] and is not addressed to pregnancy or off the job injuries or illnesses at all," Hamilton said.
He also criticized the EEOC for pursuing punitive damages against Walmart, considering the company's 2017 changes to its pregnant worker policies.
"Given that Walmart changed their policy, why didn't the EEOC just declare victory and go home?" Hamilton asked.
Driscoll-MacEachron replied that even if the company had changed its ways, the EEOC still believed the affected women were still due recompense for their lost work and emotional damages. Hamilton remained unconvinced.
The judge was much more sympathetic to Walmart's attorney Marisa Maleck of King & Spalding, who reiterated that between 2014 and 2017 the company's TAD policy was pregnancy-neutral. In its brief to the Chicago-based appeals court, the company said it did not discriminate in denying pregnant employees light duties because it likewise denied light duties to all employees injured off the job.
"The TAD policy was pregnancy-neutral, and eligibility for it turned solely on whether an associate was injured at work," the appellee brief states. "Walmart offered multiple legitimate, nondiscriminatory reasons for limiting the TAD policy to associates with work-related injuries based on that single factor, unrelated to pregnancy or gender, and thus satisfied its burden at step two... announced in Young."
Maleck argued that the EEOC simply failed to show how Walmart's old policy, however unfair it may seem on its face, violated any provision of Young.
"Walmart absolutely established its burden at step two... the burden falls to the EEOC to demonstrate pretext," Maleck said, further alleging that the EEOC never managed to do that.
The three-judge panel took Maleck's claims under advisement along with Driscoll-MacEachron's, but not before Hamilton chided Driscoll-MacEachron and the EEOC for blowing several discovery deadlines over the course of the litigation. Maleck also argued that these procedural missteps should be taken into account, saying they hurt Walmart's ability to build the most effective case it could.
"The EEOC was given five warnings on five separate occasions," Maleck said.
Hamilton was joined on the panel by U.S. Circuit Judges Michael Brennan, a Donald Trump appointee, and Daniel Manion, a Ronald Reagan appointee. Both remained mostly silent over the course of the arguments, save for the 80-year-old Manion musing at one point over what the definition of a pregnant employee should be and if it should change over the course of a pregnancy.
Driscoll-MacEachron avoided answering directly.