aw enforcement today comprises courageous and talented men and women, with women making some special and valuable contributions. Not only have women proven to be as capable as men in performing law enforcement duties, but studies have also shown that women excel at defusing violent situations and demonstrating empathy in stressful situations and that women 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. One important tool in achieving these goals is a favorable policy relating to pregnancy, one that supports parenthood without compromising police operations, without unfairly burdening nonpregnant employees, and without violating antidiscrimination law.2
The federal Pregnancy Discrimination Act (PDA) requires that employers treat "women affected by pregnancy, childbirth, or related conditions" the same in employment "as other persons not so affected but similar in their ability or inability to work."3 The PDAwas designed 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
The PDA does not prohibit employment practices that favor pregnant women, 5 nor does it require employers to provide more favorable treatment to pregnant employees.6 It does require, however, that employers treat pregnant women as well, or as poorly, as it treats other temporarily disabled employees.7 Thus, it has been interpreted by the courts to require, at a minimum, "equal treatment."
Although the PDA does not require employers to offer maternity benefits to make it easier for pregnant women to work and to return to work,8 it is beneficial to law enforcement agencies to accommodate pregnant women.9
Many progressive law enforcement agencies provide for adequate maternity leave, light duty assignments, maternity uniforms and body armor, deferral of in-service training, continuation of benefits and seniority credits while on leave, and flexible schedules upon return to work.10 Such policies are laudable, but care must be taken in how they operate.
Adequate employment accommodations for pregnant women are generally recognized to be appropriate, especially since the passage of the Family and Medical Leave Act.11 And, although under the PDA it is lawful for an employer to offer more benefits to pregnant employees than it offers to nonpregnant employees, those benefits must be offered and monitored to ensure equity and deter abuse.
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.12 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.13
One of the more difficult questions, though, arises before an officer is placed on leave because of childbirth. Law enforcement officers may be required to confront dangerous situations that demand strenuous physical exertion. They must wear, carry, and use specialized equipment. They must be able to quickly get out of vehicles and perform rescue operations. In nearly every case, a pregnant woman will have difficulty performing these tasks late in a pregnancy, but until that time, "an employee must be permitted to work at all times during pregnancy when she is able to perform her job."14
A law enforcement agency may not remove a pregnant officer from her assignment, or compel her to assume a light duty assignment, unless she cannot perform the essential functions of a police officer.15 In other words, a pregnant officer should only be assigned to a light duty status under the same criteria that other temporarily disabled employees are so assigned, namely, for medical necessity. It is unlawful for an employer to take "anticipatory" action against a pregnant employee, or to make general assumptions about the impact that a pregnancy might have on a woman's ability to do her job.16
Employers may not change a pregnant employee's assignment against her will based on stereotypes about what types of work pregnant women should do, concerns about public perceptions of pregnant officers, or notions of fetal protection.17 A pregnant employee should not be forced into a light duty assignment as long as she is physically able to perform her regular assignment. Likewise, she should not be permitted to elect a light duty assignment before it is medically necessary, unless other, nonpregnant employees are allowed to make this election.
A word about notions of fetal protection: in UAW v. Johnson Controls,18 the U.S. Supreme Court ruled that employers may not have fetal protection policies that exclude women from certain hazardous jobs, even if the intent of the policy is benevolent. Under title 7, decisions about the welfare of future children are the responsibility of parents, not employers. Under this case, "women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job."19 An employer "may only take into account the woman's ability to get her job done,"20 not whether the job poses a risk to the fetus.
Where a law enforcement agency provides light duty assignments to temporarily disabled officers, it must offer the same opportunity to women officers who are temporarily disabled by pregnancy and childbirth. In order 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 and not because of any notions of paternalism or gender discrimination.
The "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. 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 effects or equal results to ensure that they are not discriminated against because of their gender.
The case of United States v. Virginia21 may open the door to allow law enforcement agencies to adopt "equal results" policies, thus creating better flexibility and equity in responding to employee needs. In this case, the Supreme Court ordered the Virginia Military Institute (VMI) to admit capable women into its student body. But the Court ordered more; it directed VMI, where necessary, to make adjustments and alterations to the institution to facilitate the admission of women.22 Justice Ruth Bader Ginsburg noted that to achieve real equality in education or in the workplace, institutions may have to make changes that serve to accommodate the "celebrated" differences between men and women, without relegating women to an inferior position.23
The fact that only women can become pregnant is clearly one of the "celebrated" differences to which Justice Ginsburg refers. The equal results model may allow, or even require employers to provide expectant mothers with realistic and adequate employment benefits so that they can retain their professional status, just as expectant fathers do.24
Law enforcement leaders and their employees should consider the opportunity that the VMI ruling allows to creative innovative and restructured law enforcement workplaces that can accommodate the important social need to allow parents to bear and raise children, while still being productive workers. ■