Magazine article Workforce Management

Legal Briefings

Magazine article Workforce Management

Legal Briefings

Article excerpt

POLICY REVISIONS FOUND LAWFUL

AMBER WALKER was employed as a beer truck driver for Fred Nesbit Distributing Co. When she became pregnant, she claimed that unlike pregnant employees, male employees who were injured off the job were accommodated by their employer, who provided light duty or reassignment to them. In April 2002, Walker requested to either be reassigned to light duty or have an assistant accompany her to do heavy lifting during deliveries. In denying her request, the employer cited a policy change made in fall 2001 that allowed employees to be reassigned to light duty only if they were injured on the job. Her employer did not add this policy to the employee handbook or commit it to writing.

A district court stated that whether her employer's disparate treatment of Walker was motivated by pregnancy discrimination presented a fact question for the jury. Because her employer changed its policy of providing accommodation for off-the-job injuries, the jury was entitled to find that the arguable disparate treatment of Walker was not motivated by pregnancy discrimination. Walker v. Fred Nesbit Distributing Co., 2005 U.S. App. LEXIS 28552 (8th Cir. December 22, 2005).

Impact: Employers may change their personnel policies. What might be an applicable policy today might not be applicable tomorrow. The safer course would be to announce the change in policy prospectively and also make the announcement in writing. Doing so can help avoid disputes about whether or when the particular policy changed.

PROOF OF SUPERIOR QUALIFICATIONS

HAVING BETTER QUALIFICATIONS is often considered a legitimate, nondiscriminatory reason for hiring or promoting one applicant or candidate over another. But what if the applicant or candidate who is not selected claims employment discrimination? How better qualified must the comparative applicants or candidates be to prove or avoid an employment discrimination claim? …

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