I t was a discussion that took place many years ago, in a fire station, over dinner.
“Hey, Chief, my wife is pregnant. Can I go on light duty?” the firefighter asked me in a baiting sort of way, with more than a hint of sarcasm in his voice.
“Will you knock it off?” was my reply.
“No, seriously, if the city lets Tonya go on light duty because she is pregnant, then why can’t I?” Everyone in the room was now silent, following our conversation intently.
“Maybe because you’re not pregnant?” was my reply, desperately hoping some laughter from others in the room would cause the topic to be changed.
“That’s not fair. It’s discrimination,” he replied. I asked, “Who are you upset with over this, the city or Tonya?”
Pausing for a moment with a perplexed look, he said, “Both, I guess. Chief, not for nothing, but they can’t have their cake and eat it too.”
Seeing an opportunity to change the subject, I jumped on it. “Awesome, we’re having cake? I love cake. What kind of cake are we having?” and with that the conversation moved on to a less controversial topic.
Two cases in the headlines
We all know them, the firefighters who just can’t seem to resist an opportunity to stir the pot. We love them and we hate them. From a personal perspective, I have always valued the pot-stirrers because they force me to look deeply into the hard questions I might otherwise choose to ignore. Two headline-making cases in recent months reminded me of that conversation, and once again brought the issue of pregnancy discrimination in the fire service squarely into focus.
The first case involves a firefighter who sued because she was denied a light-duty assignment to accommodate her pregnancy. The second was the settlement of a suit brought on behalf of female firefighters who were refused light-duty assignments during their first trimester of pregnancy, and then forced to leave active duty for the remainder of their pregnancy.
Karen McQuistion is a firefighter in Clinton, IA, who became pregnant in the spring of 2011. She promptly notified Fire Chief Mark Regenwether and requested a transfer to a light-duty position. The request was denied due to the financial condition of the city. McQuistion continued to work on the line until Sept. 29, 2011, when her doctor advised her to take leave.
In October 2011, McQuistion filed discrimination charges against the city with the Iowa Civil Rights Commission, and received a right-to-sue letter. In March 2012, she filed suit in state court alleging:
1. Gender and pregnancy discrimination under Iowa law.
2. A violation of the Iowa state constitution’s equal-protection clause.
3. A violation of Iowa’s due-process clause.
In what was no doubt a strategic move to deliberately keep the case out of federal court, the complaint did not allege gender discrimination under federal law, a violation of the federal Pregnancy Discrimination Act of 1978, nor violations of McQuistion’s U.S. Constitutional rights.
McQuistion’s suit alleges that Clinton police officers receive light-duty accommodations for pregnancies and that the fire department allows firefighters who are injured on the job to perform light duty, but wrongfully denies an accommodation to pregnant firefighters. The suit names the City of Clinton, City Attorney Jeffrey Farwell, City Administrator Jeffrey Horne and Regenwether, who recently retired. It seeks compensatory damages to cover McQuistion’s lost wages, plus punitive damages “in an amount sufficient to punish the defendants and deter the defendants and others from the same or similar wrongful conduct.”
The second case in the headlines is the settlement of a lawsuit brought by the U.S. Department of Justice against the town of Davie, FL, over the fire department’s treatment of pregnant employees. According to the suit, the department prohibited pregnant employees from being placed on light duty until they reached their second trimester, irrespective of their ability to perform their jobs or their doctors’ orders. In addition, the department required pregnant employees to leave active-duty positions upon the start of the second trimester. Both of these requirements are clear violations of the federal Pregnancy Discrimination Act.
The act prohibits discrimination “because of or on the basis of pregnancy, childbirth or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe-benefit programs, as other persons not so affected, but similar in their ability or inability to work.”
While the town denied all accusations of discrimination, it entered into a consent decree with the Justice Department requiring it to treat pregnancy the same as any other medical condition. Pregnant firefighters must be granted light-duty or full-duty status to the same extent as other employees who have medical conditions.
Assistant U.S. Attorney General for the Civil Rights Division Thomas E. Perez said, “Decisions about how and when to restrict a pregnant woman’s work duties should be made by the woman and her doctor, and employers must make certain that their policies and practices treat pregnant women the same as people who are similarly able or unable to work...We will not tolerate public employers engaging in this type of unlawful discrimination.”
Under the terms of the consent decree, the town was given 120 days to amend its policies to eliminate all sexual- and pregnancy-based discrimination. The town also consented to an injunction that prohibits any further discrimination or retaliation against any employee over the litigation or who exercises their rights under the pregnancy discrimination act.
The pregnancy paradox
At the heart of the pregnant firefighter issue is a somewhat paradoxical problem: Some pregnant firefighters want to remain in line positions. Others want to leave line positions as early in their pregnancy as possible without having to burn up accrued sick and vacation time, or worse, go on unpaid leave for six or more months leading up to the birth.
Does a fire department have to allow pregnant employees the opportunity to do both? Can pregnant firefighters have their cake and eat it too?
The short answer is yes, that is exactly what the law requires. A fire department cannot force a pregnant firefighter to leave a line position (even if a light-duty assignment is provided), nor can a fire department deny a pregnant firefighter a light-duty position that would be granted to a firefighter for other medical reasons.
The long answer is a bit more complicated. To start off, it is important to understand that firefighting is very dangerous for pregnant firefighters and their unborn children. Research shows that high core-body temperatures, often associated with firefighting in full personal protective equipment (PPE), exposure to low oxygen levels and exposure to high carbon monoxide levels can be particularly harmful to a developing fetus. Add to those risks the likelihood of exposure to potential carcinogens at fires together with the potential for physical trauma, and the risk to pregnant firefighters is considerable.
As undisputed as the risk to mother and child is, so is the fact that the decision to come off the line is one that must be left to the firefighter and her doctor. A long line of cases, including U.S. Supreme Court cases, have concluded that paternalistic policies based on the supposed “best interests” of the firefighter herself, her unborn child or even concerns over liability do not justify an employer making the decision for the woman.
Incidentally, it has always seemed a bit hypocritical to me for a department to require a pregnant firefighter to come off the line out of a “genuine concern” for her well-being, yet deny her a light-duty assignment. It is like saying, “We are very concerned, but not that concerned.”
What a department can do if it is truly concerned about the risks is provide education and counseling to the firefighter and her doctor so that an informed decision about staying on the line can be made. However, it is inappropriate and illegal for a department to force a pregnant firefighter to come off the line (even if light duty is provided) or prevent her from going on light duty if others are allowed to use light duty for medical reasons.
The question that commonly arises in these cases is whether a department that has no light-duty program must create one to accommodate pregnant firefighters. The answer is no. As a general rule, a pregnant employee cannot force an employer to create a light-duty position. Thus, if a fire department has no light-duty positions, a pregnant firefighter would be out of luck. However, if a department provides light-duty assignments to employees for medical and other reasons, it cannot refuse to accommodate a pregnant employee who seeks a light-duty position.
The law governing pregnant firefighters is often misunderstood and misapplied, but in truth is very straightforward: a fire department cannot discriminate against an employee on account of her pregnancy. A pregnant employee cannot be denied a light-duty assignment if the department would grant it for other medical conditions, nor can a pregnant employee be ordered to leave active duty when she and her doctor conclude she can safely continue to work.
The solution is a policy that respects the employee’s rights and while ensuring that the employee and her doctor receive educational information on the risks that firefighting poses to the mother and her developing child. n