Employers that accommodate employees’ temporary disabilities should consider extending the practice to nursing mothers returning to work following maternity leave.   That’s the lesson of a recent opinion from the U.S. Court of Appeals for the Eleventh Circuit  (Hicks v. City of Tuscaloosa, Alabama, 11th Cir., 9/7/2017)    In Hicks, a City police department’s insistence that an officer return to the beat rather than to allowing her work a temporary desk job resulted in a substantial plaintiff verdict.

The plaintiff, Stephanie Hicks, was a narcotics investigator for the City’s police department.    When she returned from maternity leave she was reassigned to the patrol division.  Unlike narcotics officers, patrol officers are required to war a bulletproof vest all day.   Hicks’ doctor warned that wearing the heavy and tight vest all day could interfere with her ability to breastfeed and subject her to a painful infections. Hicks’ requested a desk assignment while she was breastfeeding so she would not have to wear a bulletproof vest.

The Department denied the requested re-assignment on the ground that breastfeeding was not a condition that warranted a special accommodation.   Instead, the Department offered Hicks two other alternatives that it believed would still allow her to do patrol duty:  1) not wearing a bullet proof vest at all; or 2) wearing a specially fitted vest.   The city also offered to assign Hicks to safe beats that allowed her access to a lactation room and she could get priority to take two breastfeeding breaks per shift.

Not surprisingly, Hicks believed not wearing a vest was not really an accommodation because it was so dangerous.  Likewise, the larger, specially fitted vest was ineffective because it left gaping, dangerous holes.   She decided to resign and sue rather than accept the Department’s proposed accommodations.    A jury found the City’s conduct constituted discrimination that is prohibited by the federal Pregnancy Discrimination Act (PDA), and awarded Hicks $374,000 in damages (which the judge reduced to $160,000, plus attorney’s fees).   Even though she resigned and was not fired, the jury found it was a “constructive discharge.”  That means the City’s proposed accommodations made Hicks’ working conditions so intolerable that any reasonable person would have been compelled to resign.

The PDA prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions.”    The City contended it was not liable under the PDA for two reasons:  1) Hicks’ choice to breast feed her baby was not covered by the PDA; and 2) The PDA does not require an employer to provide a “special accommodation” to breast feeding workers.  The Court rejected both of the City’s defenses.

The Court ruled the PDA covers a breast feeding mother because breastfeeding is a “related medical condition.”   The court looked to the ordinary definition of “lactation”, which is “the physiological process of secreting milk from mammary glands which is directly caused by hormonal changes associated with pregnancy and childbirth.”   The Court also found that an employment decision based upon the fact that the employee was breast feeding her baby qualifies as sex discrimination, because it is a gender specific condition that imposes on women a burden that male employees need not-indeed could not-suffer.

The duty to provide the accommodation Hicks sought was a closer question.   “The line between discrimination and accommodation is a fine one”, the Court stated, “but Hicks’ case presents a scenario that appears to straddle that line.”   The issue was whether allowing Hicks’ to temporarily work a desk job was a “special” accommodation, which the PDA does not require.  Or, was it the type of accommodation the employer would allow to other employees who were not breast feeding.   The City’s problem was it had permitted employees in other situations, such as those with temporary injuries, to be assigned alternative duty until they healed.   Based upon this evidence, the Court concluded Hicks did not request a special accommodation, that is, one that asked for more than equal treatment.  Rather, she simply asked to be treated the same as “other persons not so affected but similar in their ability or inability to work.”    It was reasonable, the Court ruled, for the jury to conclude under these circumstances that Hicks’ working conditions were intolerable.

The Hicks case should serve as an important reminder to employers to be consistent in their treatment of medical conditions that temporarily limit an employee’s ability to do his or her regular work.   If non-pregnancy related conditions are accommodated, there is no good reason-and no legal reason-not to accommodate those related to pregnancy.