Claim under PDA

k130a

A company has an unwritten policy that it has modified duty only for on-the-job related injuries and it followed that unwritten policy.

In regards to an employee who has short term limitations due to an event/injury off the job, he/she is required to bring a physician's statement whether he/she can perform the essential functions of the job. If the physicain states that the employee is unable to perform the job functions, he/she is required to report back to work only when the restrictions are released (and the employee can perform the essential functions of the job) and/or become permanent. (then ADA issues would be considered)

Could a modified duty policy (the Company does not create specific job classes for modified duty positions) for work related injuries vs. non-work related injuries/conditions be considered discriminatory? More specifically as follows:

Is the above policy considered discriminatory to pregnant women being that the Pregnancy Discrimination Act states... that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. And from the EEOC website page, "...the employer must treat her the same as any other temporarily disabled employee."

In the above Company scenario, the employee is treated like all employees who have not been injured on the job.

There is a 5th Circuit case Urbano v Continental Airlines 138 F3d 204 1998 which doesn't appear to have been overturned. Appreciate feedback. Thank you.

Hatchetman

A qualified employee's rights for reasonable accommodation under ADA isn't the same as pregnancy. The federal law related to pregnancy is the pregnancy Discrimination Act which provides that an employer must treat a pregannt employee in the same manner it treats any other temporarily disabled employee. Further, under the law, an employer is not prevented from treating a pregnant employee better than it treats other temporarily disabled emplyees. In 1987, the US Supreme Court upheld a California law that created a beneficial leave situation for pregnant women that obviously men could never obtain (for example, currently under a combination California laws and FMLA, a pregnant employee can get up to 7 months of "protected" leave for the pregnancy, while a male employee who is also seriously ill can get only 12 weeks "protected").

You may want to take a look at EEOC's guidelines on pregnancy discrimination issues at 29CFR1604 and particularly 1604.10.

The 1987 Supreme Court case that addressed the ability of laws to provide greater protection to pregnant employees than other temporarily disabled employees is "California Federal Savings and Loan v. Guerra" 479 US 272.

Since you say there has been no Supreme Court ruling overturning Urbano or any subsequent 5th Circuit Court ruling on the issue, then that ruling would appear to apply to the 5th Circuit. But remember, if you're not in the 5th Circuit there may be another ruling from the Appeals Court in your circuit that is directly applicable. One of the problems in the current set up of appellate court rulings is that on some issues the circuit courts do disagree and that it would take a US Supreme Court ruling to resolve contradicting rulings. Until that happens each area is controlled by the rulings from that appellate court; thus what may be improper in one circuit could be proper in another.

Take a look at the Guerro case as well and the "Ensley-Gaines v. Runyon" ruling (100 F3d 1220) in 1996 in the 6th Circuit overturning a district court's ruling on procedural issues but touching upon distinctions the employer (the US Post Office) made between "light duty" for non-IA disabled employees and "limited duty" for IA-disabled employees. It remanded the case back to the district court for a full trial on disparate treatment based upon pregnancy. I don't know what the outcome of the remand was to the district court.

Of course, whatever there is in the way of federal protections for your general question, state protections may even be greater (as in California).