In October 2019, Walmart agreed to pay $14 million to settle class action pregnancy discrimination claims brought against it. The claims asserted violations of both Title VII of the 1964 Civil Rights Act (Title VII) and the Pregnancy Discrimination Act (PDA).

A federal court must first approve the class action settlement before it takes effect. Walmart denies the allegations in the complaint.

Background about the case

The case centers on Walmart allegedly treating pregnant employees differently than employees with other medical conditions/disabilities by providing non-pregnant employees with more favorable accommodations.

More specifically, the amended complaint claims, among other things, that at least through early 2014, “Walmart maintained a constellation of policies and practices governing modifications and accommodations offered to employees in need of changes in the workplace due to health issues.”

The lawsuit contends that Walmart had separate categories for:

1. disabilities,

2. pregnancy or other medical conditions, and

3. work-related injuries

And that these distinct categories “set up a graduated system of workplace modifications that explicitly excluded pregnant employees from a wide variety of accommodations and adjustments for which non-pregnant employees, similar to pregnant employees in their ability or inability to work, were eligible.”

The legal theory

Various federal and state laws, including the PDA, Family and Medical Leave Act, and the Americans with Disabilities Act (ADA), generally dictate that an employer may not treat pregnant employees differently than employees with other medical conditions. And employers subject to these laws are usually required to hold open a job with the same reinstatement rights during pregnancy-related absences as it would for employees on sick or other types of leave.

Similarly, the PDA makes it unlawful for an employer to take an action against an employee (for example, denying them a promotion) that is based on their pregnancy.

In the Walmart case, the plaintiffs asserted that the accommodation policies themselves should be considered direct evidence of intentional discrimination. That is, the policies on their face treated pregnant employees differently than other employees who need workplace accommodations.

Even assuming the policies did not constitute direct evidence, the plaintiffs claimed that discrimination against pregnant employees existed as shown by circumstantial evidence, including:

• “Walmart refused to accommodate pregnant employees but accommodated other non-pregnant employees, despite their similarity in ability or inability to work”

• “The Prior Accommodation Policy and Pregnancy Exclusion, and practices consistent with those policies, imposed a significant burden on pregnant employees, in that Walmart provided a full range of accommodations to a large percentage of non-pregnant employees in need of accommodations while failing to provide those same accommodations to a large percentage of, or any, pregnant employees in need of accommodations unless Walmart first caused them injury while on the job;” and

• “Walmart did not have a legitimate, non-discriminatory reason for treating pregnant and non-pregnant employees differently in this way, but even if Walmart was able to present such a reason, the significant burden imposed outweighs that reason.”

The interplay between pregnancy and disability discrimination claims

The Walmart settlement raises an important legal issue: can complications from a pregnancy result in a “disability” as defined by the 2008 amendments to the ADA?

As to disability discrimination under the ADA, a plaintiff must first show that she was “disabled” under the meaning of the statute. This analysis is determined on a case-by-case basis. According to the EEOC’s regulations, a physical or mental impairment covers conditions affecting the reproductive system. 29 C.F.R. 1630.2(h)(1). Thus, the legal question often becomes whether pregnancy-related health problems are a disability as defined by the ADA. Before Congress amended the ADA in 2008, most courts held that medical conditions associated with a pregnancy did not qualify as a disability.

But the 2008 amendments to the ADA expanded the ADA’s definition of a “disability.” Although courts still generally do not find pregnancy to fit within the definition of a “disability,” some federal courts have held that “where a medical condition arises out of a pregnancy and causes an impairment separate from the symptoms associated with a healthy pregnancy, or significantly intensifies the symptoms associated with a healthy pregnancy, such medical condition may fall within the ADA’s definition of a disability.” Love v. First Transit, Inc., 2017 WL 1022191, at *5 (N.D. Ill. Mar. 16, 2017).

Key takeaways

The $14 million Walmart proposed settlement highlights some key issues for employees and employers regarding pregnancy discrimination claims:

• Once an employee notifies the employer about a pregnancy and need for leave or accommodations, the employee and employer should have a running dialogue about how to proceed;

• Employers should make workplace accommodations available to employees with medical conditions, including pregnancy, in a fair and consistent manner; and

• Although a routine pregnancy is likely not considered a disability under the ADA, complications from the pregnancy may fall within the definition of a disability.