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Pregnancy Related Discrimination is Sex Discrimination under the WLAD

On November 30, 2007, the Washington Supreme Court decided Hegwine v. Longview Fibre. This case stands for two important propositions. The first is pregnancy discrimination claims should be analyzed, under the Washington Law Against Discrimination (WLAD), as sex discrimination claims rather than as a failure to accommodate a disability. The second proposition Hegwine stands for pay attention to the facts and when they are bad settle the case because you will get burned.

Hegwine applied for a job at Longview Fibre as a clerk/order checker in the customer service department. The job advertisement sought applicants with related education or experience, computer abilities and demonstrated communication skills. It no mention of lifting or any other physical requirment. When Hegwine was interviewed she was told that it had a 25 pound lifting requirment. (Mistake #1) 5 days after her interview, she was offered the position contingent of passing a physical. As part of the physical exam, Hegwine had to answer a questionnaire that asked whether she was pregnant. (Mistake #2) Longview’s medical examiner also asked Hegwine to have her doctor certify she could meet the physical demands of the job. Her physician, without being made aware of the lifting requirements, indicated she could lift between 20 to 30 pounds and could push or pull up to 40 pounds.

When Hegwine reported for employment and orientation she also disclosed that her pregnancy. A Longview representative sent her home and told her that her doctor had released her to lift 20 pounds. (Mistake #3) Hegwine immediately contacted her doctor and asked him to raise her lifting restriction to 40 pounds, which he did and transmitted to Longview. Longview then had it equal opportunity coordinator perform an evaluation of the order/checker position. She determined the position required occasional lifting of up to 60 pounds and, thus, Hegwine was disqualified from the position. Hegwine was not given the opportunity to have her physician determine if he wouild release her to lift 60 pounds on an occassional basis. (Mistake #4) Hegwine’s offer of employment was rescinded.

At trial, the equal opportunity coordinator contradicted her report and testified that Hegwine could have had a temporary sedentary position in event she could not have performed the job’s lifting requirements while pregnant.(Mistake #5)

Although the trial court agreed with this analysis, the Court of Appeals and state Supreme Court found this was a case that should have been analyzed as a sex discrimination claim. The original decision in favor of Longview, at trial, was reversed and the case was sent back to trial for calculation of damages and award of attorneys fees.

The Bottom Line:

Trial of discrimination claims can be a challenge for employers under the best circumstances. Here, the employer could not get its story right. (“That’s my story and I’m sticking with it.”) Under the facts of this case, the employer appears either incompetent or looking for a way to deny Hegwine a job. In addition, to imposing a series of new and evolving conditions to disqualify Hegwine, the employer did not treat her fairly and could not keep its story straight. Credibility is key in these cases.

Longview is lucky this case will go back to trial on damages in front of a judge because, under these facts, a jury would most likely award Hegwine a substantial damage award. In addition, to the damages Longview will have to pay Hegwine at trial, it will also have to pay Hegwine’s attorney’s fees and costs. These could be significant since this is the type of case with a result that would justify the award of increased fees based on the quality of legal representation. My advice to Longview? Glad you asked. Settle now because it will only get worse.

Nothing in this Blog should be considered legal advice. The opinions expressed here are merely that, opinions. Nothing can substitute for consultation with an experienced legal professional who can address your particular legal needs.

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