A nursing home’s policy of accommodating only restrictions from work-related incidents could be pretext for pregnancy discrimination, a federal appeals court ruled, reversing summary judgment in favor of the nursing home.  Jennifer Latowski v. Northwoods Nursing Center, No. 12-2408 (6th Cir. Dec. 23, 2013).

After learning that a nursing assistant was pregnant, the nursing home requested that she provide a doctor’s note stating she had no employment restrictions.  The nursing home terminated her employment after her doctor faxed a note stating that her only restriction was no lifting over 50 pounds.  The basis for the termination was the nursing home’s policy to accommodate only those restrictions resulting from work-related incidents.

After her termination, the nursing assistant filed a charge with the EEOC and later brought suit in federal district court alleging violations of Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and related state claims.  The district court granted summary judgment in favor of the nursing home on all claims.

On appeal, the Sixth Circuit reversed the grant of summary judgment on the pregnancy discrimination claims.  In support of its decision, the Sixth Circuit found the nursing assistant established a prima facie case of pregnancy discrimination and noted that a reasonable jury “could easily conclude” the nursing home’s decision to “implement a policy terminating otherwise qualified workers whose doctors imposed any restrictions arising from non-workplace injuries, even if those restrictions do not limit the employees’ ability to competently perform their jobs — is so lacking in merit as to be a pretext for discrimination.” 

In addition to the policy, the Sixth Circuit considered statements by nursing home administrators regarding their concerns that by continuing to work the nursing assistant would jeopardize her health and that of her child and that her “belly would be in the way.”  The Court found these comments raised the inference that the policy was merely pretext for discriminatory animus against pregnant women. 

While it remanded the pregnancy discrimination claims to the district court, the Sixth Circuit upheld the grant of summary judgment on the other claims.  It found no evidence that the employer regarded the nursing assistant as disabled and found that the FMLA claim was not ripe and could not be proven because the nursing assistant did not request FMLA leave before her termination. 

This case highlights the importance of having counsel review workplace policies regarding leaves of absence, accommodations, and light duty, as well as training managers on their obligations under the state and federal employment laws.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.