More Pregnancy Discrimination news

It seems there's been a little flurry about pregnancy discrimination in the blogosphere lately. We've talked about it recently here and  here, and Above the Law did something of a roundup on it here.

In the last week, I've run across two news stories dealing with pregnancy discrimination in a single profession--law enforcement. In Ocean Township, New Jersey, a decorated police officer who was pregnant requested a light duty position until she has her baby. The police chief originally denied the request, saying that he was bound to follow the township's administrative policy on the matter and there was no policy. The issue had been raised in a departmental meeting at least a year earlier, but the chief determined that no policy could be created until an employee became pregnant. The chief also said that there were no "meaningful" positions available that the officer had the necessary training for. The officer is trilingual, fluent in English, Spanish, and Portuguese. The police union appealed the decision to the township's mayor and township council, noting that male officers had been placed on light duty for illnesses and injuries in the past. The union and the township reached an agreement, and the officer was placed on light duty the next day. The dispute brought national media attention to this small town.

On the same day that the New Jersey officer was put on light duty, the Detroit News reported a story about a Detroit police officer who plans to sue the Detroit police department for pregnancy discrimination. The Detroit police department treats pregnancy as analogous to an off-the-job injury and requires officers to take unpaid leave. The EEOC found that the conduct probably violated Title VII. There's an additional wrinkle here:

Deputy Chief James Tate said the department is stuck with the policy. The 2004 change was the result of an arbitrator's ruling after the police union filed a grievance on behalf of a male officer with an off-work injury. That officer complained that 17 pregnant officers were able to get light duty while he could not, according to police arbitration documents. There are about 800 female officers on the force.

And so there has been one finding that not treating male injuries like pregnancies was discrimination on the basis of sex. At the same time,

Similar situations have cropped up around the country as the proportion of police officers who are female and the proportion of pregnant women who wish to continue working grow, said Joanna Grossman, a law professor at Hofstra University in Long Island, N.Y. That has increased the cost of allowing pregnant officers to go on restricted duty and has caused many departments to limit light duty to on-the-job injuries, Grossman said.

However, such a policy change could run afoul of federal law. In 2006, a federal jury in New York ruled that the Suffolk County Police Department violated the Civil Rights Act when it made a similar policy change, because the change was targeted at pregnant women and had a disproportionate impact on them, Grossman said.

So ultimately, these cases reveal some of the challenge of sex discrimination cases that involve biological differences between most women and most men. An employer may not treat a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy. But when an employer treats temporary limitations other than pregnancy  in a number of different ways, what should the test for discrimination be? The equality theory adopted by the Court breaks down in this context.

Image from Wikimedia Commons, licensed under Creative Commons Attribution ShareAlike 2.0 License (cc-by-sa-2.0). Photo by "Inferis" and posted to Flickr.

MM