Publications: Court addresses ADA-protected pregnancy issues

Beverly Healthcare's Golden Living Center nursing home in Valparaiso, Ind., hired Victoria Serednyj (Serednyj) as an activity director in August 2006. Activity directors, according to Beverly's job description, were tasked with multiple physically strenuous functions, including climbing, lifting, pushing and pulling. Activity directors, by practice, also were required to transport nursing home residents by wheelchair.

For the first few months of her Beverly employment, Serednyj performed her job functions adequately. From time to time, a physical therapy assistant co-worker voluntarily assisted Serednyj with some of her job duties. 

On Dec. 14, 2006, Serednyj found out that she was pregnant. Several days later, she suffered a miscarriage. Just weeks after that, on Jan. 7, 2007, she learned that she was pregnant again. She duly informed her Beverly supervisor and some co-workers of the second pregnancy. 

In late February 2007, Serednyj was experiencing complications with the pregnancy. These conditions included spotting and cramping. Serednyj underwent medical tests that revealed low progesterone levels, bleeding behind the placenta and a sheared uterus. Her doctor advised her, among other things, to avoid strenuous activities and cautioned her that she risked another miscarriage. The doctor provided a note excusing Serednyj from heavy lifting and undertaking her normal workload. 

Beverly responded to the note by reminding Serednyj that she did not qualify for an accommodation under the company's modified work program, which limited light duty to employees with work-related or workers' compensation injuries, or employees eligible for accommodation under the Americans with Disabilities Act (ADA) or its state and local counterparts. Beverly also noted that Serednyj, hired the August before, had not worked enough hours to qualify for Family and Medical Leave Act (FMLA) leave. Management informed Serednyj that it would not allow her to work until her physician released her to full duty.

A short stalemate ensued. Beverly issued an ultimatum that if Serednyj could not return to work by March 14, 2007, it would fire her. She produced on March 13, 2007, a physician note again requiring light duty only. Beverly then fired her. 

Serednyj appealed her dismissal and her lawyer wrote to Beverly a note requesting accommodation under both the ADA and the federal Pregnancy Discrimination Act (PDA).  Beverly's human resources department sustained Serednyj's firing. 

She sued, claiming disability and pregnancy discrimination, failure to accommodate and retaliation. The trial court dismissed all of Serednyj's claims on summary judgment. While the 7th U.S. Circuit Court of Appeals, on Aug. 26, 2011, affirmed the dismissal, it ruled, in an appellate level case of first impression, that pregnancy-related health complications, under circumstances not present in Serednyj's case, could render an employee "disabled" and therefore protected under the ADA. Serednyj v. Beverly Healthcare LLC. No. 10-2201 (7th Cir. Aug. 26, 2011). 

The 7th Circuit, citing district court opinions and Equal Employment Opportunity Commission (EEOC) interpretive regulations, decided that complications brought on during a pregnancy can be an ADA "disability" when caused by a "physiological disorder." The appellate court further concluded that Serednyj's complications "were not the result of a normal pregnancy and were, in fact, physiological disorders of the reproductive system … "

However, the court wrote, Serednyj's disability claim could not proceed to trial because Serednyj still was required to demonstrate that her "physiological disorder" substantially limited her in a major life activity, in this case, reproducing or lifting. Because Serednyj's "pregnancy-related complications did not last throughout her pregnancy or extend beyond the time she gave birth," the court concluded that they did not substantially limit her ability to reproduce or lift. Indeed, the court said, Serednyj later gave birth to a second child without complaint of any complications. The key: The pregnancy-related complications she did experience were temporary and short-term.

The 7th Circuit also dispatched Serednyj's claim that Beverly's modified work policy constituted evidence of pregnancy and gender discrimination because it did not allow pregnant workers the same accommodation as nonpregnant employees. According to the court, Beverly's policy is square with the PDA because it treats pregnant and nonpregnant workers alike, denying them all light-duty assignments for nonwork-related injuries or conditions. 

Finally, the 7th Circuit rejected Serednyj's argument that Beverly ran afoul of the law by not requiring Serednyj's co-workers to assist her after she became pregnant. 

The court drew a sharp distinction between the voluntary assistance a co-worker had rendered to Serednyj pre-pregnancy and the mandatory assistance Serednyj sought to impose upon the co-workers following her pregnancy.

Reprinted with permission from Chicago Daily Law Bulletin.