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An employer can lawfully require pregnant employees with lifting
and other restrictions to go on leave and deny temporary light duty
work available to workers injured on the job. On August 16, 2022,
the Seventh Circuit Court of Appeals upheld upheld Wal-Mart Stores
East, L.P.’s (Walmart) “Temporary Alternate Duty”
Policy (TAD Policy) that offers light duty only to those workers
injured on the job. Equal Employment Opportunity Commission v.
Wal-Mart Stores East, L.P., (2022 WL 3365083).
In September 2018, the Equal Employment Opportunity Commission
(EEOC) filed a class action lawsuit against Walmart, claiming that
the denial of light duty to pregnant women violated the Civil
Rights Act of 1964 and the Pregnancy Discrimination Act. Under the
TAD Policy, Walmart offered light duty to workers injured on the
job who wanted to keep working and earning their full wages while
complying with relevant medical restrictions. Walmart claimed the
TAD Policy was designed to comply with Wisconsin’s worker’s
compensation laws and reduce overall costs while improving employee
morale. Walmart did not offer light duty, under the TAD Policy or
otherwise, to pregnant workers or workers who were injured off the
The Pregnancy Discrimination Act amended Title VII to provide
“women affected by pregnancy, childbirth, or related medical
conditions 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.” Id. (emphasis added). The Court
found that Walmart established a legitimate, non-discriminatory
reason for the TAD Policy, and excluding pregnant employees and all
other workers was not discriminatory. The Court rejected the
position that pregnant workers are entitled to
“most-favored-nation” status. The Seventh Circuit
distinguished this case from prior cases, including one involving
United Parcel Service (UPS), where UPS denied light duty to a
pregnant driver. The facts in the UPS case were that UPS not only
accommodated drivers who had become disabled through on-the-job
injuries but also those who had lost federal Department of
Transportation certifications, and those who had disabilities
covered by the Americans with Disabilities Act of 1990.
Nevertheless, employers should consult with their employment law
advisors when implementing policies that apply exclusively to
specific groups of employees or before responding to requests for
accommodations by pregnant employees.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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