DAWN HAGER, Complainant


ERD Case No. 9002344, EEOC Case No. 26G901549

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on March 12, 1992. Complainant filed a timely petition for review by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed April 29, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


Complainant's principal if not exclusive argument to the Administrative Law Judge was that she was discriminated against because of pregnancy when Respondent would not change her duties to comport with her lifting restrictions, since the Respondent would do this in the case of some other types of disabilities, i.e., work- related disabilities. The Commission agrees with the ALJ's conclusion, that there is no discrimination because of pregnancy, in a policy that employes with non-work- related disabilities will be placed on leave of absence if they cannot perform their regular duties, while employes with work-related disabilities which prevent them from performing their regular duties will whenever possible be given modified duties or light work so as to allow them to continue to be employed. In such a case, the distinction is not between pregnancy-related disability and other kinds of disability. Rather, it is between work-related disability and non-work-related disability, this being a distinction which is facially neutral. There is no evidence that such a distinction has a statistically significant disparate impact on the employment opportunities of pregnancy females.

In her petition for Commission review, the Complainant proceeds on an entirely different theory. No longer arguing that her limited ability to do her regular job was treated differently because it arose from pregnancy, she now argues that as a matter of fact she was not limited in her ability to do her regular job by her pregnancy and the lifting restrictions her physician had imposed.

The Commission disagrees. Complainant's job description indicated that her position required "considerable . . . lifting [and] transferring of residents." The residents are all adults and all weigh over 100 pounds. They must be assisted in baths and showers, dressing, moving in and out of bed, and using the commode. While a mechanical lift is available for some purposes, it tends to rotate the hips of the patients and for that reason it is not to be used all the time. Complainant's physician indicated that she was restricted from lifting more than 25 pounds. In these circumstances it was an appropriate conclusion, both on the part of Respondent and on the part of the Administrative Law Judge, that Complainant was not physically able to fulfill the required duties of her regular position. Respondent therefore dial not violate the Fair Employment Act when it placed Complainant on a leave of absence.

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