Last summer, we learned that the U.S. Department of Justice had been investigating the Davie (Fla.) Fire Rescue Department in connection with its treatment of pregnant firefighters. The parties were able to settle the case, so the complaint and the settlement (known as a consent decree) were filed the same day; there were no court proceedings to speak of.
But why file a complaint if the matter was settled? By filing the complaint with the court, the DOJ was able to ensure that the court could take future action if Davie did not comply with the terms of the consent decree.
So, what was it all about? According to the DOJ, the Davie department was doing two things wrong. First, per the DOJ, pregnant firefighters in their first trimester were not provided light-duty assignments, while non-pregnant firefighters who needed light duty for non-work related health conditions or injuries were provided light duty. If this is true, if would violate the Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act. The act states it is impermissible to treat a pregnant woman any less favorably than any other worker with a non-work related condition; it is perfectly alright to treat pregnant employees better than others. But at a minimum, they must be treated equally.
Second, the DOJ alleged, once a pregnant firefighter reached her second trimester, she was removed from active firefighting duties, whether or not she was able to safely continue those duties. That, too, would violate the PDA. And, I would think, it would discourage a woman from sharing her pregnancy with her superiors, knowing that whether or not she required an accommodation at the time of her second trimester, she would automatically be removed from her position.
This chilling effect on disclosure is dangerous, both to the woman, her unborn child, her colleagues and the public. As mentioned briefly in an earlier Mutual Aid post, NFPA 1582 has been revised; among other matters, it discusses the need for disclosure in terms of safety for everyone involved.
Also, let me be clear: Davie disputes that it did anything wrong and the entry of the consent decree is not an admission of wrongdoing or liability in any fashion. Parties routinely settle matters because of the various costs (financial, time and morale) associated with litigation (especially litigation with the government, which seems to have endless resources to pursue its cases).
What does the consent decree require? A number of things, but I think the most important points are as follows:
- Light duty cannot be mandated simply because someone is pregnant. An individualized assessment of each person must be conducted.
- Pregnant firefighters must have the same options with respect to light-duty assignments compared to any firefighter with a non-work related medical condition.
- The review and amendment, if necessary, of policies that relate to sex and pregnancy discrimination, which must be submitted to, and approved by, the DOJ.
- Extensive dissemination of the approved policies.
- Every employee and supervisor must acknowledge receipt of the policies in writing.
- Training about pregnancy discrimination must be provided to all supervisory personnel.
In the next installment, I will discuss what this means for your department, and what you should be doing in an attempt to avoid administrative claims or judicial action.
What do you think? Tell us in the comment box below.
Alisa Arnoff is a partner at the Chicago-based law firm Scalambrino & Arnoff, which specializes in labor and employment law.
