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DISABILITY DISCRIMINATION: Pregnant Employee Entitled to Trial on Her Discrimination Claims

Kentucky Employment Law Letter, Vol. 21, No. 1
October 2010

A recent decision involving a Kentucky employer highlights the necessity of taking special care when dealing with pregnant employees. While eliminating strenuous job functions for pregnant employees may be laudable, such efforts may be construed as impermissible discrimination. In the following case, the employer improperly transferred a pregnant welder to a less strenuous position out of concern that her job would harm her or her unborn child. 


In May 2007, Heather Spees was hired to work as a welder at James Marine, Inc. (JMI), a construction and repair facility for inland waterway vessels near Calvert City. Welding work at JMI is demanding — it requires heavy lifting, climbing up ladders and stairs, maneuvering into barge tanks, handling equipment overhead, and being exposed to fumes, dust, and organic vapors. Spees was considered “a good employee” and “a good welder.” 

One month after she was hired, Spees learned she was pregnant. It was her third pregnancy; she had a daughter in 1999 and suffered a miscarriage in 2005. She discussed her job with her physician, who initially determined that “there was no problem” with her welding while pregnant and provided her with a “Certificate to Return to Work” without any restrictions. 

Even though Spees was cleared to return to work, her foreman believed that based on “common sense . . . there [were] questions about her being pregnant and being able to safely perform the job that she was required to do.” He learned from her brother that she had experienced pregnancy complications in the past. Consequently, he directed her to obtain a second doctor’s note limiting her to “light duty” work because of the “toxic fumes” associated with welding. He believed that if she obtained the revised physician’s note, JMI would transfer her to the tool room and allow her to keep working while she was pregnant. 

As directed, Spees obtained the second note. However, her physician later testified that there was no medical reason to limit her welding duties and he wrote the note only to allay her concerns and reduce her anxiety. On June 20, JMI transferred her to the tool room. 

On August 16, Spees’ physician placed her on bed rest for the remainder of her pregnancy. She wasn’t entitled to leave under the Family and Medical Leave Act because of her short tenure at JMI. When she notified the company of her need for total bed rest, she was fired. She contended that both her transfer and her termination violated Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). 

Court’s decision 

The court found Spees’ discharge was lawful under Title VII because she had been terminated like any other employee who (1) didn’t qualify for FMLA leave, (2) exhausted the absences uniformly allowed by JMI, and (3) couldn’t work for a lengthy period. As for her ADA claim based on the termination, the court held that an increased risk of having a miscarriage could form the basis of a disability under the ADA. Spees argued that JMI improperly regarded her as disabled because of her pregnancy problems and believed she was unable to work in the tool room because of them. The court found, however, that she was discharged because she couldn’t work in the tool room while on total bed rest. 

As for the Title VII and ADA claims based on her transfer to the tool room, Spees won the right to a jury trial. JMI’s critical misstep was in ignoring the first note from her physician. Without any medical basis, it relied solely on the foreman’s perception of “common sense” and assumed she couldn’t weld safely while pregnant. The court noted that the company’s purported concern for her health and the health of her unborn child was laudable, but it was an impermissible reason to transfer her to the tool room. Without evidence that she was a risk to others, Title VII does not allow JMI to consider her pregnancy when deciding whether to transfer her to another job. Thus, her pregnancy discrimination claim could be presented to a jury. 

Finally, the court considered whether JMI violated the ADA by transferring Spees to the tool room. Her foreman’s instruction to obtain a physician’s note limiting her to light-duty jobs substantially limited her ability to work in a broad class of jobs — a major life activity. The court concluded that JMI’s decision to transfer her to the tool room could demonstrate that it regarded her as disabled. Consequently, the court held that Spees was also entitled to a trial on her ADA claim. Spees v. James Marine, Inc., No. 09-5839, 2010 WL 3119969 (6th Cir., August 10, 2010). 

Bottom line 

When considering a pregnant employee’s ability to work, pay special attention to her physician’s directives (without influencing them). Don’t assume that an employee will be unable to perform essential job functions just because she’s pregnant or that certain job functions may harm her or her unborn child. ✤

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2010 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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