A federal appeals panel has shut down an effort by federal regulators to punish Walmart for not allowing pregnant workers to enjoy the same kind of lighter work duties the retailer gave to certain workers who had been hurt while on the job at one of Walmart’s Wisconsin distribution centers.
On Aug. 16, a three-judge panel of the U.S. Seventh Circuit Court of Appeals sided with the world’s largest retailer in its fight against the attempt by the Equal Employment Opportunity Commission to sue the company for alleged sex discrimination against pregnant women.
The ruling upheld a federal district judge’s decision to dismiss the EEOC’s action against Walmart.
U.S. Seventh Circuit Court of Appeals Judge David F. Hamilton
| law.columbia.edu
The appellate ruling was authored by Seventh Circuit Judge David F. Hamilton. Judges Daniel A. Manion and Michael B. Brennan concurred.
The case centered on Walmart’s so-called Temporary Alternate Duty (TAD) Policy. Under the policy, in place since 2014, Walmart allowed workers who suffered injuries while on the job, and would otherwise qualify for workers’ compensation under Wisconsin law, to transition temporarily to another, less physically demanding position at its distribution center.
For instance, workers who had injured their back while working their normal job moving or lifting heavy boxes, could move to another job, such as labeling, paperwork, painting or cleaning while their injury heals. Under the policy, workers would be reevaluated every 90 days.
According to the appellate decision, this would allow injured workers to continue working at their normal pay rate, while allowing Walmart to comply with its obligations under Wisconsin’s workers’ comp law and avoid the need to hire a replacement.
Altogether, Walmart said the policy was designed “to reduce overall costs while improving employee morale.”
The policy, however, was not extended to workers who became pregnant, or to workers who suffered non-work related injuries. Pregnant workers, in particular, were required to take leave when they could no longer physically complete their regular work duties.
The decision noted this could place workers “to make difficult choices between continuing to work at a job that was becoming physically too demanding, or even dangerous, and going on unpaid leave for several months.”
The decision noted several pregnant workers testified along those lines, saying they opted to quit their job when they were denied transfer requests or ordered to take unpaid leave, when they informed their supervisors of lifting restrictions.
After receiving complaints, the EEOC filed suit against Walmart in 2018 on behalf of a class of pregnant workers the distribution center. The lawsuit asserted Walmart’s refusal to extend its TAD policy to pregnant workers amounted to sex discrimination and a violation of the federal Pregnancy Discrimination Act.
U.S. District Judge Barbara Crabb granted judgment to Walmart, finding the retailer’s policy decisions were not discriminatory.
The EEOC sought to revive the lawsuit on appeal.
However, the Seventh Circuit judges agreed with Crabb’s findings.
In their decision, the judges said Walmart could have been found to discriminate against pregnant workers, if it had allowed other workers with other non-work related physical activity restrictions to take advantage of the TAD policy.
But Walmart did not do so, the judges noted.
Applying a three-step test established by the U.S. Supreme Court under its 2015 decision in Young v United Parcel Service, the Seventh Circuit judges said Walmart had presented a sufficient enough explanation to defeat the EEOC’s lawsuit.
“Walmart met its burden … by offering a legitimate reason for the TAD Policy’s limits that was not discriminatory,” said Judge Hamilton. “From Walmart’s standpoint, it had chosen for sound reasons to offer a benefit to a certain category of workers, those injured on the job, without intending to discriminate against anyone else with physical limitations, whether caused by off-the-job injuries, illness, pregnancy, or anything else, to whom its reasons did not apply.”
The judges said EEOC’s legal reasoning was “circular” in the case, and all but asked the court “to adopt the ‘most-favored-nation’ status for pregnant employees that the Supreme Court rejected in Young.”
While UPS’ lighter duty policy was found to be discriminatory, UPS had “seemed to accommodate lifting restrictions resulting from every condition except pregnancy,” the judges noted.
“In this case, however, the EEOC has not offered evidence of comparators who were similar to pregnant women in their ability or inability to work and who benefited from light duty, other than workers injured on the job,” they said.
Walmart has been represented in the case by attorneys Anne M. Voigts, Marisa C. Maleck and Kathryn A. Running, of the firm of King & Spalding, of Palo Alto, California, and Washington, D.C.