(Thanks to Barran Liebman for sharing their Electronic Alert on this subject.)
A longstanding Washington court battle has ended with a cautionary ruling for employers. Hegwine v. Longview Fibre involved a claim that the employer had discriminated on the basis of an applicant’s pregnancy when it refused to hire her because she was unable to satisfy the lifting requirements of the job. The Washington Supreme Court described the facts this way: Hegwine had been offered a job subject to a physical examination. She disclosed her pregnancy during that examination and, on request, presented a medical release authorizing lifting at 20-30 lbs and showed up for work, but was sent home while the employer evaluated the lifting authorization. Hegwine had her doctor raise the limits to 40 lbs, but after a conversation with the company’s doctor, he settled at “20 pounds frequently and 40 pounds occasionally to infrequently.” That led to a job analysis and a decision that Hegwine could not perform the essential functions, a withdrawal of the job offer, and a finding of discrimination on the basis of sex (pregnancy).
Washington law recognizes a defense of business necessity but in this case the court concluded it had not been established because of the way the facts laid out:
- The ad for the job did not mention lifting requirement;
- The interviewers mentioned a requirement of only 25 pounds;
- Hegwine did not suggest she had any restrictions;
- The employer made an assumption that because Hegwine was pregnant, she would be restricted;
- After Hegwine’s doctor cleared her, the employer changed the lifting requirement;
- When the employer received further clearance, the employer talked to the doctor;
- Even though the third release still permitted Hegwine to do the job, the employer sent her home until it sorted out the situation;
- Only then did the employer start a job analysis, which identified an even higher requirement;
- The new higher requirement was not disclosed to Hegwine or her physician; and
- Hegwine’s offer was withdrawn because of her “availability.”
The inability to show a business need had far reaching consequences. The Court went further and concluded that even asking about pregnancy was an unfair employment practice because there was no reason to believe that pregnancy was inconsistent with the requirements of this job.
Hegwine is a detailed fact-intensive decision but the cautions are clear:
- If there are physical requirements for the job, identify them before hiring.
- Make sure the requirements are consistently applied throughout the hiring process including advertisements, interviews, and post-hire physicals; avoid making changes after an applicant has disclosed a pregnancy or other condition.
- Avoid assumptions about what an applicant can or cannot do.
- Be clear, precise and correct when articulating the reasons for a termination or withdrawal of a job offer.
- General safety considerations don’t matter as much to applicants, judges, or juries as they do to employers. Pay attention to whether the status actually interferes with the applicant’s ability to do the job.
The Court made one final legal ruling that is important for employers to understand: pregnancy is not a disability, so employers should not be evaluating employment in the language and with the procedures used for disability law (“essential functions” and “accommodation” being the most common). The issue here is whether there was discrimination. “Should an employer hire a pregnant employee, that employee is to receive the same treatment as any other employee with similar physical limitations.” This decision does not suggest that employers have to hire pregnant employees who cannot perform the job – just that the employer has to be pretty certain that is so.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. Copyright © 2007 by Barran Liebman LLP