Comment of Concern for a Pregnant Woman’s Health was Sufficient to Force Trial on Discrimination Claim

Carissa Davis

In Rios v. Leprino Foods Co., No. 19-cv-03185-MEH, 2021 BL 341237 (D. Colo. Sept. 09, 2021), the United States District Court for the District of Colorado reminded employers of (1) the need to proceed with caution in conversations involving a request for a pregnancy accommodation; and (2) the difficult standard for prevailing on summary judgment.

In Rios, the Plaintiff experienced complications with her pregnancy and her doctor imposed lifting restrictions. Through the interactive process, the employer determined that all the potential jobs it had available required that the employee lift in excess of the doctor’s instructed lifting restriction. Plaintiff’s doctor then provided a new note that increased her lifting capacity.  Plaintiff still could not safely lift the weight required in her position, so she requested that other employees “help her lift things.” In an accommodation meeting, Plaintiff’s supervisor said he “could not live with himself” if she continued to work, despite her doctor’s restrictions, if anything happened to her or her baby. Plaintiff eventually took Family and Medical leave and received Short-Term Disability benefits. After a seven-month leave of absence, Plaintiff returned to work.

Plaintiff filed suit, alleging her employer failed to accommodate her. The Court explained that, while many of Plaintiff’s factual allegations did not support her claim, one did. Her supervisor’s “comment of concern came in the same conversation as when he determined that Defendant could not accommodate her. Thus, a reasonable jury could conclude that [the supervisor’s] statement expressed discriminatory intent based on Plaintiff’s pregnancy and that the decision to not accommodate stemmed from that intent…”  The Court went on to explain that “[a]lthough it is not a facially strong case of discrimination, Plaintiff has nevertheless met her burden in demonstrating a genuine dispute of material fact” – all that was required to survive summary judgment. Absent settlement, the employer must now go to trial on Plaintiff’s failure to accommodate claim.

Employers should ensure that individuals who engage in the interactive process, especially supervisors and managers, are aware of the potential legal consequences that might flow from editorializing on an employee’s health and medical restrictions, especially related to pregnancy. Even comments made with the best of intentions could mean trial on a claim of discrimination with that supervisor as a key witness.