Nurses as a rule are required to treat patients to whom they are assigned. This may create a dilemma for some nurses who may feel that by attending to certain highly-infected patients they may put their health or the health of their unborn baby at serious risk. Their alternative is to quit the job which, in fact, is not much of a choice. But public policy requires such a harsh option, for without it hospitals and patients at large would be left at the mercy or whimsy of individual nurses.

This case analyzes the situation of a pregnant woman who refused to treat an HIV-infected patient and chose to be terminated. The court termed her claim of sexual discrimination as a demand to be accorded preferential treatment which other nonpregnant nurses obviously do not enjoy.

Facts : In June 1989, Armstrong received an associate's degree in nursing from Wallace College in Dothan, Alabama. Following her graduation, she was employed as a nurse in the newborn nursery of Southeast Alabama Medical Center ("SAMC"). After one year with SAMC, Armstrong concluded that her evening shift at SAMC made it difficult to meet her family's needs, and she decided to look for a day job. She responded to an advertisement for a position in the Home Care Services division ("HCS") of Flowers Hospital. Shortly after an interview with Cheryl Wynn, the administrator of the Dothan, Alabama office of HCS, Armstrong accepted a position as a home health care nurse, based in the Dothan office. As part of the terms of her employment, Armstrong understood that her SAMC student loan would be repaid by Flowers Hospital.

Armstrong began her new position in early August 1990. During orientation, she read the HCS policy and procedure manual and also reviewed a handbook on universal precautions. At the end of her orientation, Armstrong assumed responsibility for approximately 25 patients. She periodically visited these patients in their homes and provided whatever nursing services were required.

As Armstrong understands the term, "universal precautions" are infection control procedures which are to be implemented by a nurse when the nurse is uncertain whether a patient is infectious. In effect, the nurse is to assume that a patient is infectious until it is established that such is not the case.

Wynn and Armstrong discussed the patient assignment later that evening. The parties agree that Armstrong voiced her concerns about seeing an HlV-positive patient during the first trimester of her pregnancy. The parties also agree that Wynn reviewed the HCS policy regarding patient treatment. That policy provided that refusal to treat a patient was grounds for termination. Wynn also indicated that Armstrong was given this patient assignment because she was in the best position to handle the time required.

Armstrong was convinced that universal precautions, even if properly executed, would not provide sufficient protection. Accordingly, she decided that she would not treat the patient.

Armstrong then chose to be terminated, rather than to resign. In January 1992, Pamela Armstrong filed suit against Flower's Hospital, Inc. alleging a violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). Flowers Hospital filed a motion for summary judgment and the district court granted this motion, absolving the hospital of any wrongdoing. Armstrong appeals the trial court's decision.

Court Decision: There are two types of discrimination actionable under Title VII. The first is "disparate treatment," or intentional discrimination. The Supreme Court has provided the following explanation of disparate treatment:

The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.

The second type of discrimination prohibited by Title VII is "disparate impact." The Supreme Court explains disparate impact as follows:

Claims of disparate impact involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, is not required under a disparate impact theory.

HCS requires each and every nurse to treat the patients assigned to that nurse. A nurse who refuses to treat a patient may be terminated. It is this employment practice that Armstrong challenges as discriminatory.

Instead of permitting an employer to decide whether a pregnant woman can assume or continue a particular job, the Supreme Court concluded that this type of decision must be left to the pregnant woman. With the Pregnancy Disability Act (PDA), Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself.

The right to make this decision rests with the woman. She may choose to continue working, to seek a work situation with less stringent requirements, or to leave the work force. In some cases, these alternatives may, indeed, present a difficult choice. But it is a choice that each woman must make.

Armstrong has asserted that an employer must ease the decision-making process by making alternative work available for a pregnant employee. An employer is generally prohibited from deciding for a pregnant employee what course of action is best for her.

Throughout this case, Flowers Hospital has asserted that plaintiff's claims of discrimination are more accurately viewed as an effort to secure preferential treatment for pregnant employees. The preferential treatment would consist of accommodation of a pregnant employee's concerns regarding risk to herself and her fetus through rescheduling of nursing assignments. In other words, a pregnant employee would be entitled to refuse to work on a given patient if she believed the patient posed a special risk to herself and her fetus, while a nonpregnant employee would have no right to refuse to perform a particular assignment. Flowers Hospital argues that preferential treatment is not required by the PDA.

To require an employer to make reasonable accommodations for a pregnant employee is to require the employer to relinquish virtually all control over employees once they do become pregnant. As the Seventh Circuit observed, "Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees."

Armstrong has not provided evidence sufficient to establish a prima facie case of discrimination. It may be that the policy modification Armstrong seeks is, in reality, a form of preferential treatment.

Armstrong v. Flowers Hospital, Inc. 33 F. 3d 1308; 1994 U.S. App.

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