By Colonel Deborah J. Campbell, Deputy Superintendent, New York, New York, State Police, and Co-Chair of the IACP Diversity Coordinating Committee; and Karen J. Kruger, Esq., Funk & Bolton, P.A., Counsel, Maryland Chiefs of Police Association, Board Member of the IACP Legal Officers’ Section, and Member of the IACP Diversity Coordinating Committee*
oday’s law enforcement profession is comprised of courageous and talented men and women, with women making some special and valuable contributions. Although law enforcement is still a male-dominated profession, women are becoming police officers in greater numbers, and their contributions are being recognized. These contributions may be lost if law enforcement agencies fail to recognize that police officers are entitled to become parents, because the officers may otherwise be forced to choose between their profession and parenthood.
The job of a law enforcement officer is one that involves emotional stress, intellectual challenge, and physical demands. It is a profession that requires the talents of people whose personal resources include courage, integrity, and equilibrium. An effective law enforcement officer may be required to perform more than 600 essential functions, many of which require a high level of physical fitness.
Not only have women proven to be capable in performing these law enforcement duties, but studies have shown that women excel in defusing violent situations, demonstrating empathy in stressful situations, and are less likely to be accused of using excessive force.1
It is critical then, for the continued success of the profession, that law enforcement agencies successfully recruit and retain women to serve as police officers. Important to achieving these goals are family-friendly policies, including a favorable policy relating to pregnancy—one that supports parenthood without compromising police operations, without unfairly burdening nonpregnant employees, and without violating antidiscrimination laws.
The IACP recently published its groundbreaking model policy “Pregnancy” that should assist law enforcement agencies in managing and accommodating their pregnant employees so that these women can safely perform essential functions during all or most of their pregnancies. This, in turn, should support agency efforts to maintain gender diversity.
Pregnancy and Policing
Women who work as police officers and choose to become mothers may, during the course of their pregnancies, become disabled such that they cannot perform all of the essential functions required by their jobs. Certain antidiscrimination laws protect those women from losing their jobs or from otherwise being disadvantaged, but only to a limited extent.
A law enforcement agency may not discriminate against its employees based on pregnancy, childbirth, or related conditions—conditions that are unique to females. Thus, a police agency may not (1) refuse to preserve a job for an employee on maternity leave when it protects the jobs of others who are temporarily disabled; (2) deny seniority status upon return from maternity leave, unless others on disability leave are treated similarly; or (3) refuse to grant pension service time for the period of maternity leave unless other disabled employees are similarly disadvantaged. 2 Indeed, it is an unlawful employment practice to take an adverse action against an employee whenever her pregnancy is a motivating factor for the action.
Discrimination in employment on the basis of gender is unlawful under Title VII of the Civil Rights Act of 1964. In 1978, as part of Title VII, Congress enacted the Pregnancy Discrimination Act, which requires that employers treat women who are pregnant the same as other applicants or employees who have similar abilities or limitations.
In Automobile Workers v. Johnson, 499 U.S. 187 (1991), the U.S. Supreme Court ruled that an employer cannot exclude pregnant women from hazardous jobs without violating federal discrimination laws. The Court encouraged employers to offer to women options that include different job assignments or accommodations in their usual jobs. Pregnant women who have been discriminated against because of their pregnancies—either because of so-called “fetal protection policies” or for other seemingly benevolent reasons—have increasingly sued law enforcement agencies and prevailed.
The failure of police agencies to adopt adequate pregnancy policies has contributed to a number of Title VII discrimination complaints filed by women in the workplace. A finding that a law enforcement agency discriminates against women is costly both in terms of dollars and in public relations, including the recruitment of women into the profession.
For instance, in 2009 a federal court jury delivered a unanimous verdict against Suffolk County, New York, finding that it discriminated against a pregnant police officer when it denied her request for light duty. The Justice Department found that the sheriff of Bryan County, Oklahoma, had violated Title VII because he automatically reassigned female correctional officers to administrative duties upon their becoming pregnant. And in January 2010, U.S. Security Associates settled a pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission on behalf of a pregnant security guard, resulting in the payment of nearly $80,000 in damages.
Accommodations Not Required
The federal Pregnancy Discrimination Act (PDA) requires employers to treat “women affected by pregnancy, childbirth, or related conditions” the same “as other persons not so affected but similar in their ability or inability to work.”3 The PDA was intended to “guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life.”4
But, the PDA does not entitle women to ask for favorable accommodations during pregnancy, nor does the act require employers to provide favorable treatment to pregnant employees that it does not afford to nonpregnant employees. It does, however, require that employers treat pregnant women as well, or as poorly, as other temporarily disabled employees. Thus, it has been interpreted to require, at a minimum, “equal treatment.”
Despite its shortcomings, the PDA and its state law counterparts have had a positive impact. For instance, in 1997 four Massachusetts State Troopers were required to assume “temporary modified duty” assignments because of their pregnancies, although they wished to remain on full duty. When they complained to the Equal Employment Opportunity Commission, they were reinstated to full duty within a week.
In Adams v. Nolan,5 Officer Charlotte Adams requested and was denied a light-duty assignment from her supervisor during her pregnancy, even though she provided a doctor’s note advising that she should be assigned to “lighter work.” The agency policy held that “no light duty assignments will be made for employees due to non-work-related injury or illness.”
During the next several months, Officer Adams continued to request light-duty work assignments, while two male officers were allowed to work at desk jobs because of nonwork-related, temporary injuries. When she was approximately five months pregnant, she took her accumulated leave and some unpaid leave until after the birth of her child. She returned to work, and the department assigned her not to patrol work but in an administrative section, which would have been a suitable assignment for her during pregnancy.
The appellate court found that Adams established a prima facie case of discrimination and that the agency failed to offer a legitimate nondiscriminatory reason for its actions. It also found that the agency’s limited leave policy “strongly suggests intent to discriminate against women who are pregnant or have pregnancy-related conditions, which is expressly the type of discrimination prohibited by the Pregnancy Discrimination Act.”6
These cases illustrate that the PDA provides only a modest protection for pregnant women, in that it provides only a “negative right to be treated the same as other similarly situated workers.”7 Indeed, at least one commentator has noted that in dealing with the PDA and its equal treatment paradigm, most courts incorporate stereotypes about pregnancy that result in cases that “permit discrimination based on the very type of stereotyping that [the PDA] was expected to eradicate.”8
IACP Policy Offers New Guidance
Current economic and recruitment climates require agencies to both support their employees and protect against liability. The new model policy is intended to provide law enforcement chiefs and executives guidance in making decisions about work-related issues involving pregnant law enforcement officers. The goal of the policy is to prevent discriminatory practices that may arise when agencies are not fully aware of the medical aspects of pregnancy and to assist agencies in accommodating the unique issues related to pregnancy. The policy provides options that allow an officer to remain working in a full-time capacity, performing full-duty assignments in combination with modified duty assignments, if needed, until such time that the officer’s treating obstetrician/gynecologist recommends solely or in consultation with the department’s medical advisor a leave status for the employee, or the employee independently requests leave due to her medical condition. The policy is designed specifically for pregnant employees and is not the equivalent to a typical policy on “light duty.”
This policy seeks to treat pregnancy as a routine event, thereby avoiding an adverse situation that negatively affects the seniority, position, or compensation of the pregnant employee. It is important to note that no punitive action should be taken against a pregnant employee who requests the accommodations suggested in this policy.
This policy considers the risks faced by law enforcement agencies that employ women: (1) retaining those employees during their childbearing years, (2) avoiding liability for gender discrimination, and (3) safeguarding the physical well-being of its employees. In no event may pregnant employees be treated any less favorably than other employees with comparable illnesses or medical conditions, even in the face of these concerns.
Law enforcement work carries with it certain risks of injury. Officer safety is of paramount importance, and agencies bear the costs of injuries or accidents in the workplace, generally through workers’ compensation. Pregnancy in an officer presents some particular safety concerns—concerns that are specifically addressed in the policy. These policy guidelines are based on medical criteria and allow women to continue working while reducing the risk of injury. Accordingly, failure to follow these guidelines may result in liability for negligence by exposing pregnant employees to an unreasonable risk of injury. The policy guidelines strike a balance between actual safety risk and the risk of employee discrimination liability.
Using this policy will assist agencies in retaining their female officers and reduce the risks posed by either gender discrimination or injury liability, because the policy is specifically designed to both recognize a woman’s right to work free from discrimination and accommodate the legitimate safety needs associated with a pregnancy, based on accurate medical criteria. As such, the policy facilitates the ability of a woman to preserve her career without exposing her or her unborn child to unreasonable risk in the workplace.
A diverse workforce is a valuable asset, and trained, experienced female law enforcement officers are critical resources. Pregnancy is a temporary physical condition, unique to women, which may affect an employee’s ability to perform many of the usual duties of her job classification. This policy establishes procedures to provide eligible pregnant employees temporary, alternative-duty assignments when it is medically indicated that they are unable to safely perform all of the essential functions of their usual assignments. In order to meet this goal, an agency may need to consider offering temporary assignments in other government departments or agencies where the pregnant employee could perform tasks that serve the public interest, while also protecting her career. Job sharing among employees may provide a viable opportunity as well.
Pregnancy affects each woman differently, and it should not be assumed an employee is unable to continue her regular job functions solely because she is pregnant. Likewise, departmental needs may differ, and the roles of different employees also vary. For instance, in some agencies it may be necessary that members temporarily assigned to “maternity duty” perform duties not normally associated with their usual duties, or even beyond typical law enforcement functions. Agency heads should consider seeking involvement of labor representatives in making these assignments to avoid “out of title” grievances.
This model policy is unique in that it encourages agencies to provide opportunities for employees and employers alike by minimizing the absence of employees who are capable of working despite being pregnant. The policy suggests that agencies offer evolving, alternative assignments that parallel the development and physical changes associated with the typical pregnancy. The intent of the policy is that these assignments change as needed by the employee’s actual changing physical or medical condition and are specific to the needs of the individual officer. An agency must coordinate the terms of this recommended policy with existing policies and applicable state and local laws, as well as any federal laws and regulations.
The accommodations described in this policy are based on the medical criteria associated with pregnancy and are thus both rational and reasonable. The medical literature indicates that the highest risks posed to a developing fetus during the first trimester are exposure to toxic chemicals, including lead and other heavy metals; excessively loud noise; and radiation. During a later stage of pregnancy, depending on the rate of development, the higher risk is that of trauma and physical workload. The modifications to duty described in this policy parallel these medical considerations.
When an officer is assigned to modified duties, she may also, as a result, be subjected to limitations imposed by other agency regulations such as rules regarding secondary employment, required physical fitness testing, mandatory overtime details, and diminution of pension benefits due to absence. Law enforcement agencies should consider those concurrent negative impacts and take measures to ameliorate them to avoid liability under the discrimination theory of “disparate impact.”
Medical Criteria as the Deciding Factor
To ensure that the decisions regarding a pregnant employee’s ability to work in a particular assignment are based on sound medical advice, an agency must provide the employee’s personal physician with a detailed description of the essential functions of her law enforcement position so that the doctor may objectively and thoroughly evaluate the employee’s ability to safely perform those tasks. To be realistic and comprehensive, this description should ideally be based on a job-task analysis. Physicians may also benefit from a checklist specifying the tasks and highlighting some of the medical issues addressed by the model policy. Physicians should review the medical guidelines developed by the IACP Law Enforcement Physicians’ Section and the American College of Occupational and Environmental Medicine, available soon at www.acoem.org/leoguidelines.aspx. Both agencies and physicians must remain mindful of medical confidentiality requirements that are imposed by federal or state law.
An agency should make every reasonable effort to accommodate the needs of pregnant employees to allow them to remain gainfully employed during the course of their pregnancies. This policy, and others that recognize the legitimate needs of employees in a realistic and compassionate manner, will help to make law enforcement agencies the “employer of choice” for many qualified candidates. Good social policy and the cultural leadership role that law enforcement agencies play demand that police agencies work to accommodate pregnant police officers and institute policies that do not require women to choose between a productive career and parenthood. Moreover, to successfully recruit and retain women officers, agencies will find it useful to provide flexible policies to accommodate family needs but must do so in a balanced and equitable fashion, not from any notions of paternalism or gender discrimination.
The conventional “equal treatment” model does not really afford to agencies and to officers who seek to combine parenthood with a law enforcement career a flexible enough approach to meet the various needs that arise in different situations. The equal treatment model essentially requires equal treatment, “regardless of any inequality of effect that such treatment occasions.” 9 It makes it difficult for employers to account for the inevitable differences that arise among any group of employees in terms of competence, performance, loyalty to the agency and commitment to the profession, not to mention the undeniable physical differences among officers and between men and women. A better approach may be one that seeks to afford employees “equal results” to ensure that they are not discriminated against because of their gender.
The IACP is committed to eliminating discrimination in the profession and to enhancing diversity among and within law enforcement agencies. This new model policy represents tangible support for these goals and the IACP and its Diversity Coordinating Panel should be commended for this valuable work. ■
1National Center for Women and Policing, Hiring & Retaining More Women: The Advantages to Law Enforcement Agencies, Spring 2003, 2, www.womenandpolicing.com/pdf/NewAdvantagesReport.pdf; Susan E. Martin and Nancy C. Jurik, Doing Justice, Doing Gender: Women in Law and Criminal Justice Occupations, (London, England: Sage, 1996).
2Jeffery Higginbotham, “Pregnancy and Maternity Leave Policies: The Legal Aspects,” The FBI Law Enforcement Bulletin 62, no. 3 (March 1993): 27–32.
342 U.S.C. § 2000e.
4California Federal Sav. & Loan Assoc. v. Guerra, 479 U.S. 272, 289 (1987) (quoting 123 Cong. Rec. 29658 (1977) (remarks of Sen. Williams)).
5Adams v. Nolan, 962 F.2d 791 (8th Cir. 1992). Officer Adams sued the North Little Rock Police Department and Police Chief William P. Nolan.
6Id. at 794.
7D’Andra Millsap, comment, Reasonable Accommodation of Pregnancy in the Workplace: A Proposal to Amend the Pregnancy Discrimination Act, 32 Hous. L. Rev. 1411, 1417 (1996).
8Judith G. Greenberg, The Pregnancy Discrimination Act: Legitimating Discrimination against Pregnant Women in the Workforce, 50 Me. L. Rev. 225, 226 (1998).
9Linda J. Krieger and Patricia N. Cooney, The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women’s Equality, 13 Golden Gate U. L. Rev. 513, 540 (1983).
|Join Colonel Deborah J. Campbell and Karen J. Kruger, Esq., at IACP 2010 in Orlando, Florida, October 23–27, for a session during which they will discuss the IACP model policy “Pregnancy” and its implications for law enforcement executives. For conference information, visit http://www.iacpconference.com.|
*The authors were the principal drafters of the IACP model policy, “Pregnancy,” adopted in March 2010. Portions of this article have been previously published in the working paper Pregnancy & Policing: Are They Compatible? by Karen J. Kruger.
Please cite as:
Deborah J. Campbell and Karen J. Kruger, "Chief's Counsel: IACP Policy Assists Agencies to Define Pregnancy Policies," The Police Chief 77 (July 2010): 12–14, http://www.nxtbook.com/nxtbooks/naylor/CPIM0710/#/12 (insert access date).