Mississippi Advisory Opinions August 01, 1988: 19880801 (August 01, 1988)

Advisory Opinion Text

Mr. Charles J. Jackson

Acting Commissioner

Mississippi Department of Corrections

723 North President Street

Jackson, MS 39202

Dear Mr. Jackson:

Attorney General Mike Moore has received an official opinion request from past-Commissioner Gene A. Scroggy dated February 1, 1988 and has assigned it to me for research and reply. As Commissioner of the Mississippi Department of Corrections, Mr. Scroggy's inquiry was as follows:

‘Does the Department of Corrections have lawful authority to exclude pregnant correctional officers from attendance at the Training Academy?’

Initially, please be aware that there are two sources of law that prevent sex discrimination in public sector employment. There is state law and federal law. The following opinion will be legal authority with regard to the interpretation of the state law. With regard to the federal laws prohibiting sex discrimination, the following opinion is only advisory.

The Mississippi Legislature has expressly declared that no person seeking employment in State service shall be discriminated against on the basis of race, religion, sex, national origin, age or handicap. Miss. Code Ann., § 25-9-149 (1987 Cum. Supp.). Discrimination on the basis of pregnancy is a form of sex discrimination and is therefore prohibited.

Title VII of the 1964 Civil Rights Act prohibits sex discrimination in government employment. 42 U.S.C. § 2000(e). As a general rule, it is sex discrimination to discharge or refuse to hire someone because of pregnancy. 29 C.F.R. § 1604.

However, it is not sex discrimination to protect a pregnant person and/or her unborn child from undue safety hazards at the work place. To do so, the employer must select the least discriminatory method of affecting the pregnant employee's current employment status. For instance, in Zuniga v. Kleberg County Hospital, 692 F.2d 986 (5th Cir. 1982), the court held that a hospital violated Title 7 when it fired a pregnant x-ray technician. Though the court assumed that the hospital may be able to justify its removal of pregnant workers from constant exposure to x-rays under the business necessity doctrine, it held that placing those employees on leave would have been a less discriminatory alternative to firing. Placing pregnant x-ray technicians on leave, rather than firing them, would not have reduced the number of employees affected by the policy, but it would have reduced the adverse impact of the policy upon those employees affected. Levin v. Delta Airlines, Inc., 730 F.2d 994 (5th Cir. 1984) .

It is recommended, that if the department deems it necessary for safety reasons, to exclude pregnant women from portions of the training academy curriculum, that it adopt a policy providing for implementation of such exclusion. Once the employee is excluded, it would be preferable under the law that the employee be placed in an employment position with the department on a temporary basis until she is able to return to the academy. However, if there are no such positions available, or it would not be practical for the department to so place the employee, such alternate placement is not required by the law. The next order of preference would be to allow the employee to exhaust her accumulated personal and sick leave during her pregnancy. If the employee does not have sufficient leave to exhaust, then she may be placed on administrative leave without pay.

It is recommended that the department adopt a policy similar to the following: If it is readily apparent from the candidate's physical or mental condition and appearance, or if otherwise known to the department, that to allow the candidate to participate in any part or parts of the training academy curriculum could reasonably foreseeably result in serious bodily harm to the candidate or another (includes unborn child), the candidate will not be allowed to participate in the portion(s) of the curriculum wherein such danger would exist. If it is reasonably foreseeable that the candidate's mental or physical condition will substantially improve to a degree where such danger would not be present in the ascertainable near future, not exceeding twelve (12) months (must be substantiated with doctor's statement), the candidate will be allowed to currently complete those parts of the training where no such danger exists and complete the remaining portion(s) when normal health has been restored. Otherwise, the candidate will be dismissed from the training academy as if he/she had never enrolled.

If there are any questions or if further guidance is needed in adopting a policy similar to that quoted above, please do not hesitate to call upon the Office of the Attorney General.

With best regards,

Jim Kelly Special Assistant Attorney General