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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.