Some thoughts on a pregnancy discrimination case
There are times when a judge is right, and it makes you want to start screaming.
Or at least that was my reaction in reading the ruling of a Louisiana U.S. District Court, which agreed with a provider fighting a pregnancy discrimination claim. In the case, a certified nursing assistant sued under the Pregnancy Discrimination Act after her employer fired her after she became pregnant with twins and needed accommodations.
Basically, the court said the CNA, Eryon Luke, couldn't prove that her employer, Nottingham Regional Center in Baton Rouge, LA, offered light duty to non-pregnant employees with similar lifting restrictions.
But while the center may have won in court, it doesn't mean the people running it shouldn't be taken to task by others in the industry for their moral bankruptcy.
Here's why: CNAs have, by any account, incredibly tough jobs, including turning residents, pushing residents in wheelchairs and escorting them to make sure they do not fall. It's not a secret how many lift residents, often putting their physical health at risk. There is, as the court said, a genuine dispute of fact over whether lighter work could have been found for Luke during her pregnancy. However, the records indicate that, at least at some point, the center found light weekend work. Her physician had originally asked her to avoid lifting for two weeks due to her high risk pregnancy, and after a 10-day break, Luke asked for accommodations of not lifting more than 30 pounds for the rest of her pregnancy. According to the records, the human resources manager ultimately said no. (Cough)
The provider's' basic argument is that CNAs regularly had to lift more than 30 pounds and it couldn't find, in the halls of its 176-bed, 1-star facility, some other task for her.
As angry as the case makes me, it offers a time for reflection for the rest of the industry. Let's break this down. Why were mechanical lifts not an option in this situation? Why was there no other work for Luke? Why did this lawsuit make it to court, rather than being settled?
I suspect the last is because the owners knew the law would be technically on their side, and indeed, by that standard, they're right. Bravo. My opinion is, by ethical standards, they're somewhere between those who steal medication from their residents and politicians who call for the assassination of their rivals.
I know there will be commenters whining about how unfair I'm being. They'll say things such as, “Well, the CNA should have thought about her job when she became pregnant,” or, “It's not the facility's job to accommodate everyone,” or, “We're under such financial pressure.”
My response to that, especially if it's coming from religious providers, is that it's a good time to ask What Would Jesus Do? My guess is he would not fire the pregnant-with-twins employee working in one of healthcare's toughest job.
One commenter said to us, after the story ran, that the provider “had every right in the world to find someone else who can do the job,” if Luke was on probationary status. Also, that Luke “should not even think about putting her babies at risk.”
The comment came from a distinctly male email account, and someone I am going to guess has not been pregnant.
I can't believe I am the only person who sees this hypocrisy for what it is. The long-term care industry talks until it is blue in the face about its values. Yet it consistently struggles to appreciate working mothers. Some of the previous pregnancy discrimination cases we've written about are here, here, here and here. I gag at the hypocrisy when among long-term care providers who think the contraception mandate is “overstepping,” yet don't see the need for any protection for pregnant workers.
For all of us who decry government over-regulation in business, THIS is why. It's because you cannot trust certain actors to be fair, accommodating or ethical.
Don't tell me your facility can't afford to accommodate pregnant workers when it can afford to send the BMW-driving CEO to five conferences a year. Don't spout to me how low-paid workers should grin and bear it while pregnant while the industry is getting a $920 million increase in payments next year.
The law may be on your side, but I'm sure not, and neither should any other working woman.
Follow Elizabeth Newman @TigerELN.
P.S. Congratulations to Sue and Eileen, who both won copies of “Bullying Among Older Adults” based on a random drawing from commenters on last week's blog. Thank you to Health Professions Press for donating these copies. For those who would like a copy, the book can be ordered at healthprofessionspress.com