In its November 29, 2007 decision, the Washington Supreme Court ruled that an employer who refuses to hire a job applicant because of her pregnancy is liable for sex discrimination under the Washington Law Against Discrimination (WLAD), absent a business necessity or a bona fide occupational qualification (BFOQ).

The case, Hegwine v. Longview Fibre Company, involved a woman, Stacy Hegwine, who applied for a clerk/order checker position in Fibre’s customer service department. During Hegwine’s interview, Fibre said the position had a 25 pound lifting requirement. Fibre offered Hegwine the position conditioned upon her successful completion of a physical exam. During the exam, Hegwine disclosed that she was pregnant. Her doctor indicated that she could meet Fibre’s 25 pound lifting requirement. After Fibre learned Hegwine was pregnant, however, it notified her that its lifting requirement was actually 40 pounds. Hegwine then obtained a new release from her physician indicating that she could meet the 40-pound requirement. Fibre subsequently determined that the requirement was actually 60 pounds and notified Hegwine that it was withdrawing its offer of employment because her “availability did not permit her to perform the job.” Hegwine sued Fibre alleging unlawful sex discrimination.

The trial court analyzed Hegwine’s claim under a disability discrimination framework, focusing on whether the 60 pound lifting requirement was an essential function of the clerk/order checker position, which Hegwine’s “disability” prevented her from performing. Under this framework, the trial court held that Fibre was relieved of any obligation to accommodate Hegwine. The Court of Appeals disagreed, overturned the trial court’s decision, and analyzed Hegwine’s claims under the Washington Law Against Discrimination (“WLAD”) sex discrimination framework. The Washington Supreme Court agreed with the Court of Appeals, and held that the trial court’s analysis of Hegwine’s claims using disability discrimination analysis was erroneous and instead, claims of employment discrimination because of pregnancy are to be analyzed as matters of sex discrimination. Under the Supreme Court’s framework, an employer unlawfully discriminates by refusing to hire a person because of her pregnancy, unless the refusal is based upon a business necessity or the employer proves a BFOQ.

The Supreme Court further held that Fibre could not support either a business necessity or a BFOQ defense to its various lifting requirements. To establish a business necessity defense an employer must prove that the challenged employment practice utilized significantly correlates with the fundamental requirements of job performance. For example, the Court stated, “an employer hiring workers into a training program that cannot accommodate absences for the first two months might be justified in refusing to hire a pregnant woman whose delivery date would occur during those first two months.” The court held that Fibre’s business necessity claim failed because its proffered nondiscriminatory reason for not hiring Hegwine, the lifting requirement, was merely pretext for intentional discrimination because of her pregnancy. The court pointed to evidence that the job advertisement listed no lifting requirement; in the interview, only a 25 pound lifting requirement was mentioned; and when Hegwine’s doctor’s permission exceeded the 25 pound lifting requirement, Fibre changed the requirement and told her it was 40, and then 60 pounds.

To establish a BFOQ, an employer must show that excluding pregnant women was essential to the purposes of the position or that all or substantially all pregnant women would be unable to efficiently perform the duties of the position, such that hiring them would undermine the company’s operations. Fibre’s BFOQ defense failed because it did not show that excluding pregnant women was essential to the clerk/order checker position or that substantially all pregnant women are incapable of meeting the position’s lifting requirement.

The court also held that Fibre violated the WLAD when it inquired as to Hegwine’s pregnancy status as part of its mandatory pre-employment medical exam, because “inquiring as to a prospective employee’s pregnancy status constitutes unlawful sex discrimination, unless the inquiry is based upon a valid BFOQ.”

Unresolved by the court was the issue of whether a pregnancy related condition that becomes a permanent disability may be governed by the disability discrimination framework involving reasonable accommodation.

Recommendations:

In response to this case, employers should:

  • Avoid any pre-employment inquiry as to a prospective employee’s pregnancy status, absent a valid bona fide occupational qualification.
  • Base employment decisions involving a woman who is pregnant or has a pregnancy related condition only on a valid business necessity or bona fide occupational qualification, not on an accommodation analysis.Pregnancy related conditions include, but are not limited to, related medical conditions, miscarriage, pregnancy termination, and the complications of pregnancy.
  • Prior to making an adverse employment decision involving a pregnant woman, consult an attorney to ensure the decision complies with employee’s rights under the WLAD.