Kentucky Employment Law Notes

6th Circuit finds light duty policy not to constitute disparate treatment discrimination

Today in Reeves v. Swift Transportation Co. Inc., (published), the 6th Circuit affirmed the summary judgment dismissing Reeves' pregnancy discrimination claim.  Very nice case for employers.  Reeves was a truck-driver.  That position for Swift required extensive lifting.  When she became pregnant, Reeves' physician restricted her from performing the lifting.  Reeves repeatedly requested a light duty position from Swift, but was consistently denied because under Swift's policy, light duty positions are only available for persons injured on the job. Reeves was eventually discharged because Swift had no work for her.  (She did not qualify for FMLA leave.)  After going to the EEOC, Reeves filed suit arguing that Swift's policy constituted "per se" pregnancy discrimination.  The Court summarized Reeves' argument as follows:

Reeves says that the policy’s terms are themselves discriminatory because they provide light duty work to employees injured on the job who can perform no heavy lifting but not to pregnancy employees who can do no heavy lifting. This part of the policy, Reeves argues, violates the Act’s provision that pregnant employees “shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . .” 42 U.S.C. § 2000e(k). A person injured on the job with the same work abilities as Reeves, the argument goes, receives light duty and therefore has been treated better than Reeves.

The Court did not accept this argument, reasoning, instead:

Swift’s policy cannot be viewed as direct evidence of discrimination because the Act merely requires employers to “ignore” employee pregnancies. See Spivey v. Beverly Enters., 196 F.3d 1309, 1313 (11th Cir. 1999); Urbano v. Cont’l Airlines, 138 F.3d 204, 206 (5th Cir. 1998) (“[A]n employer is obliged to ignore a woman’s pregnancy . . .”); Troupe v. May Dep’t Stores Co., 20 F.3d 734, 738 (7th Cir. 1994). Swift’s light-duty policy is indisputably pregnancy-blind. It simply does not grant or deny light work on the basis of pregnancy, childbirth, or related medical conditions. It makes this determination on the nonpregnancy-related basis of whether there has been a work-related injury or condition. Pregnancy-blind policies of course can be tools of discrimination. But challenging them as tools of discrimination requires evidence and inference beyond such policies’ express terms.

Because Reeves had no evidence Swift applied the policy in a discriminatory manner (for example, granting light duty to non-pregnant employees injured off the job), the Court affirmed the summary judgment dismissing her disparate treatment claim.

6th Circuit addresses when statute of limitations begins to run in a termination case

Yesterday in Hite v. Norfolk Southern Railway Co., the 6th Circuit reminded us that, "statutes of limitations in cases involving terminations of employment should run from the initial termination decision, and are not effected by the pendency of administrative reviews of those decisions."  The case is somewhat interesting to read for the various arguments presented as to why Hite had not really been terminated.

NLRB looks to "increase awareness" of the Act

The NLRB General Counsel has announced an initiative to "increase awareness of the Act."  Here is the memo. While the memorandum states the agency should ensure neutrality, this seems to be an effort to drum up union activity, which, by my definition, is not neutral.

6th Circuit vacates NLRB order that nurses were not supervisors

In the recent past it has not been unusual for the 6th Circuit and the NLRB to take different views regarding whether certain nurses are statutory supervisors.  That happened again today in Extendicare Health Services, Inc. v. NLRB.  The case dealt with "floor nurses" at nursing homes.  The "floor nurses" were actually LPNs.  I won't go through the specifics (the opinion is not that long), but as could be predicted, the NLRB and the 6th Circuit differed regarding whether the "floor nurses" exercised independent judgment in directing the work of nursing assistants and whether the "floor nurses" could independently and effectively initiate discipline proceedings against the nursing assistants. In contrast to the NLRB, the 6th Circuit concluded yes and yes.

6th Circuit issues ADA "association with" decision.

Sorry for the delay on this case (I'll chalk it up to Derby), but toward the end of April, the 6th Circuit affirmed a summary judgment granted to the employer in Overley v. Covenant Transport, Inc. (unpublished).  Overley presented gender, ADA, and FMLA claims.  The gender claim was dismissed because Overley had no evidence male employees were treated more favorably.  The significant part of the case was the Court's discussion of Overley's ADA claim.  Overley did not claim she was disabled.  Rather this case dealt with Overley's relationship with her daughter, who was disabled.  The money quote in the case is,

"Unlike a claim brought by a disabled person, an employer is not required to reasonably accommodate an employee based on her association with a disabled person.  Thus, Overley cannot claim that Covenant discriminated against her by not granting her sufficient time off or allowing her to modify her schedule so that she could care for her daughter."

It is somewhat surprising the case was "unpublished," given that the Court expressly recognized the dearth of opinions addressing the ADA's "association with" provisions.