May 16, 2008
Pregnant woman wins employment bias suit

By ANDREW BERGH
Special to the Journal

Employers take heed: Don't mess with pregnant job applicants.

This advice especially applies to Stacy Hegwine, who pursued a sex discrimination suit against a prospective employer that refused to hire her because she was pregnant. The wheels of justice indeed turn slowly, however, as the Cowlitz County woman could've raised a small family by the time she finally prevailed.

In late 2000, Longview Fibre Co., which operates one of the largest pulp-paper mills in North America at Longview, ran an advertisement for a clerk/order checker position in its customer service department.

Hegwine interviewed for the job in mid-February 2001. Although the ad mentioned no physical requirements, she was told during the interview the position had a 25-pound lifting requirement. Hegwine apparently impressed both interviewers, as she was offered the job five days later, contingent on passing a physical exam.

Six days before her March 1 start date, Hegwine completed her physical at the office of Fibre's medical director. As part of the exam, she filled out a physical history form asking about her pregnancy status and truthfully disclosed that she was pregnant. In response, the medical director said that as a condition of employment, her personal physician would need to complete a medical release form.

On her start date, Hegwine reported to work as scheduled and watched some orientation videos. She then met with Fibre employee Colleen Cox and again disclosed her pregnancy. After Cox conferred with the medical director and learned the medical release was still outstanding, however, she told Hegwine to go home and that Fibre would “be in touch.”

That same day, Cox received the completed medical release from Hegwine's physician, who indicated that she could lift between 20 and 30 pounds. But when Cox contacted Hegwine, she inexplicably said the doctor had only cleared her to lift 20 pounds.

Hegwine didn't pussyfoot around. After promptly contacting the medical director's office and being told the “actual” lifting restriction for the position was 40 pounds, she asked her doctor to raise her lifting restriction to that weight. The physician obliged and faxed a new form to Fibre. But the medical director, apparently confused by the disparity between the two releases, contacted the physician and completed a third form based on their conversation. This time, Hegwine was cleared to lift 20 pounds “frequently” and 40 pounds “occasionally to infrequently.”

So was Hegwine now in the clear?

No way.

That's because Margaret Rhoades, Fibre's equal employment opportunity coordinator, was directed to conduct a “relevant analysis” of the position. Her conclusion? That a clerk/order checker must occasionally lift boxes weighing up to 60 pounds, and that given Hegwine's 40-pound lifting restriction, she couldn't meet the requirements of the job.

In short, on March 16, 2001, only 15 days after her start date, Hegwine learned from the company that its offer of employment was being withdrawn. Smelling a rat, Hegwine later sued Fibre for sex discrimination in Cowlitz County Superior Court.

But when a non-jury trial was held in early 2005, the trial court threw Hegwine a huge curve ball.

Instead of analyzing Hegwine's claim under Washington's sex discrimination law, the trial court said her pregnancy was a “disability,” and proceeded to analyze her claim under Washington's disability discrimination law. Using this framework, the judge focused on the 60-pound lifting requirement, concluding that it was an “essential function” of the clerk/order checker position. Since Hegwine's “disability” kept her from performing it, the judge ultimately ruled in Fibre's favor because the company had no obligation to “accommodate” Hegwine under Washington's disability discrimination law.

But Fibre's victory was fleeting.

That's because a Washington appeals court, in 2006, reversed the lower court because it had applied the wrong legal analysis. Also holding that Hegwine should prevail under the proper sex discrimination analysis, it returned the case to the trial court to determine Hegwine's damages. That plan got suspended, though, when the Washington Supreme Court granted Fibre's petition for review.

If this raised Fibre's hopes, however, they were recently dashed by our high court, which unanimously sided with Hegwine.

First of all, the justices unequivocally confirmed that pregnancy is not a “disability,” and that employment discrimination because of pregnancy should be analyzed under Washington's sex discrimination law.

They also agreed with the appeals court that Hegwine, as a matter of law, had proven her sex discrimination claim.

Rejecting Fibre's claim (among others) that its decision to rescind the job offer was justified by “business necessity,” the justices observed how the lifting requirement had evolved from no pounds, to 25 pounds, then to 40 pounds, and finally to 60 pounds. Given the circumstances, said the court, Hegwine had sufficiently shown the “proffered weight-lifting requirement” was only “pretextual,” and that Fibre had intentionally discriminated against her because of her pregnancy.

All told, approximately 81 months elapsed between Hegwine's original start date at Fibre and the high court's decision.

So like I said, the wheels of justice can certainly turn slowly. But if Fibre thought it could beat Hegwine at the waiting game, it was sorely mistaken.