Gerety v. Atlantic City Hilton Casino Resort

*408 Chief Justice PORITZ,

dissenting.

The majority holds that so long as an employer’s medical leave policy applies equally to men and women (whether the employee’s condition is pregnancy-based or otherwise), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, is not violated. I cannot agree. In my view, the employer’s facially neutral leave policy in this case results in a disparate impact on women such that gender discrimination must be found. However laudable the employer’s intentions, pregnancy is unique to women. That biological fact requires us to examine whether an even-handed leave policy disadvantages women because they, and only they, will use leave for pregnancy-related conditions thereby limiting its availability for medical conditions generally, a limitation never faced by men. I would hold that an employer must reasonably accommodate the women in its workforce by extending leave for pregnancy when such leave is necessary for health reasons, unless the employer can demonstrate that business necessity prevents that accommodation.

I.

The Law Against Discrimination (LAD) protects the “civil right” of “[a]ll persons ... to have the opportunity to obtain employment.” N.J.S.A 10:5-4. In furtherance of that right, N.J.S.A. 10:5-12 declares, in relevant part, that it is

an unlawful employment practice, or as the case may be, unlawful discrimination: a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, domestic partnership status, affectional or sexual orientation, genetic information, sex, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer, to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment____

When called on to interpret the LAD, our Court has emphasized the Legislature’s broad remedial purpose as “nothing less than the *409 eradication of the cancer of discrimination,” Fuchilla v. Layman, 109 N.J. 319, 334 , 537 A.2d 652 (quoting Jackson v. Concord Co., 54 N.J. 113, 124 , 253 A.2d 793 (1969)), cert. denied, 488 U.S. 826 , 109 S.Ct. 75 , 102 L.Ed.2& 51 (1988), and has liberally construed the language of the statute to achieve that purpose. Cedeno v. Montclair State Univ., 163 N.J. 473, 478 , 750 A.2d 73 (2000). Although we have considered federal precedent in our quest for meaning, we have not hesitated to move beyond federal law when our own law and traditions require that we do so:

In construing the terms of the LAD, this Court has frequently looked to federal precedent governing Title VII of the Civil Rights Act of 1964 (Title VII) as a key source of interpretative authority. Although the substantive and procedural standards that we have developed under the State’s LAD have been markedly influenced by the federal experience, we have applied the Title VII standards with flexibility and have not hesitated to depart from federal precedent if a rigid application of its standards is inappropriate under the circumstances.

[Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 600-01 , 626 A.2d 445 (1993) (internal quotations and citations omitted).]

See Viscik v. Fowler Equip. Co., 173 N.J. 1, 13, 16 , 800 A.2d 826 (2002) (stating that “New Jersey Courts have traditionally sought guidance from the substantive and procedural standards established under federal law,” but recognizing that “[t]he term ‘handicapped’ in LAD ... has been interpreted as significantly broader than the analogous provision of the Americans with Disabilities Act”).

In this case, we should adhere to our own law and traditions and look beyond the baseline set by the federal courts. We have always been vigilant in the protection of civil rights even when the Legislature has not yet addressed the precise form of discrimination before the Court. In doing so, we have not usurped a legislative function; rather, we have recognized the broad remedial purpose that animates the LAD and have interpreted the statute to give effect to that purpose. We have understood that the LAD, stripped to its essence, embodies a simple but powerful idea: that discrimination will not be tolerated in our society.

*410 II.

I approach the question before the Court with that idea as a guiding principle.

I begin by acknowledging that Hilton’s medical disability policy is both generous and more than the law requires. Under that policy, employees are permitted twenty-six weeks of leave for any medical reason, including pregnancy; 1 any employee unable to return after twenty-six weeks is deemed to have resigned. Although those employees may reapply to Hilton, if rehired they lose seniority and any other carryover benefits that were available had the twenty-six weeks not been exceeded.

Plaintiff, Christina Gerety, was employed by Hilton from 1989 until she was discharged on April 2, 1998. Sometime around September 1997, she discovered that she was pregnant. Based on medical concerns related to her pregnancy, in October 1997, Christina sought disability leave. Christina’s pregnancy-related medical problems continued with the result that she was absent for more than the 182 days (or twenty-six weeks) allowed under Hilton’s family leave policy. Ultimately, because Hilton strictly enforced its policy, Christina was fired effective April 2, 1998. After she gave birth to twins on April 15, she would have been eligible for family leave under the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 to -16, had the gap not occurred between Hilton’s twenty-six-week leave period and the twins’ birth (about thirteen days including Saturdays and Sundays). Christina therefore lost the opportunity to use family leave and to maintain her seniority.

Hilton’s leave policy is facially neutral in that it treats men and women alike in respect of the number of days they are allotted for medical disability. Under the federal Pregnancy Discrimination *411 Act of 1978 (PDA), 42 U.S.C.A. § 2000e(k), discrimination based on pregnancy is sex discrimination. 2 Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 284 , 107 S.Ct. 683, 691 , 93 L.Ed.2d 613, 626 (1987). It states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected____”42 U.S.C.A. § 2000e(k). That does not mean, however, that states cannot provide different treatment for pregnancy-related conditions in the workforce context.

The United States Supreme Court has concluded that “Congress intended the PDA to be a floor beneath which pregnancy disability benefits may not drop — not a ceiling above which they may not rise.” Cal. Fed., supra, 479 U.S. at 285 , 107 S.Ct. at 691 , 93 L.Ed.2d at 626 (internal quotations and citation omitted). In California Federal, supra, a California state agency found that under state law “California employers [had] to reinstate an employee returning from ... pregnancy leave to the job she previously held, unless it [was] no longer available due to business necessity,” a benefit unavailable to men. Id. at 276 , 107 S.Ct. at 687 , 93 L.Ed.2d at 620 . Justice Marshall framed the issue as “whether the PDA prohibits the States from requiring employers to provide reinstatement to pregnant workers, regardless of their policy for disabled workers generally,” and decided that it did not. Id. at 284, 292 , 107 S.Ct. at 691, 695 , 93 L.Ed.2d at 625, 630 ; see Christine Neylon O’Brien & Gerald A. Mardek, Pregnancy Discrimination and Maternity Leave Laws, 93 Dick. L. Rev. 311 , 326 (1989) (noting that as of 1989, thirteen states had pregnancy disability policies that fit within framework annunciated in California Federal, including California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Kansas, Massachusetts, Montana, New Hampshire, Oregon, Tennessee, and Washington).

*412 Although New Jersey does not have a statute that specifically requires accommodation for pregnancy-related medical conditions in addition to or apart from other conditions common to men and women alike, I would find that the LAD, interpreted broadly as we must, requires that accommodation. Given the Legislature’s expressed concern about the pernicious effects of discrimination and the Legislature’s numerous additions to the list of groups protected by the LAD, 3 and given our consistent liberal interpretation of the LAD, I would hold a facially neutral leave policy that has a disparate impact on women violative of N.J.S.A. 10:5-12(a).

That there is a disparate impact is obvious and self-evident. We do not need a statistical study or the marshalling of examples to tell us that only women will use their leave for pregnancy-related conditions and that, therefore, only women will need accommodation because of pregnancy-related conditions in order to even the playing field for men and women. 4 Indeed, this case is illustrative of that need. The facts graphically illustrate the disparate impact of Hilton’s facially neutral leave policy: both Mr. and Mrs. Gerety work for Hilton; Mrs. Gerety carried the couple’s children and Mr. Gerety kept his job. Indeed, California Federal, supra, points out that “[b]y taking ‘pregnancy into account,’ California[ ] ... allows women, as well as men, to have families without losing'their jobs.” 479 U.S. at 289 , 107 S.Ct. at 694 , 93 L.Ed.2d at 629 .

*413 III.

It is important to understand that early efforts to address discriminatory policies were focused on equal treatment for pregnant women in the workplace. As Justice Marshall observed

Title VII, as amended by the PDA, and California’s pregnancy disability leave statute share a common goal. The purpose of Title VII is to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of ... employees over other employees.

[Id. at 288, 107 S.Ct. at 693 , 93 L.Ed.2d at 628 (internal quotations and citations omitted).]

Clearly, barriers that limit opportunities for women favor men who are not similarly limited.

In rejecting a claim of disparate treatment in Castellano v. Linden Board of Education, 79 N.J. 407, 412 , 400 A.2d 1182 (1979), our Court held that a mandatory one-year maternity leave policy contained in a collectively negotiated agreement between the Linden Board of Education and the teachers’ union violated the LAD. In that case, the plaintiff teacher, Sandra Castellano, gave birth in August and informed the Board that she wished to return to her position in late September. Id. at 408 , 400 A.2d 1182 . She was required to take the one-year mandatory maternity leave of absence, however, and was not permitted to apply her accumulated sick leave during that period. Ibid. The Court found that “[i]n purpose and effect, [the policy] discriminate[d] against teachers because of their sex,” distinguishing Gilchrist v. Board of Education of Haddonfield, 155 N.J.Super. 358 , 382 A.2d 946 (App.Div.1978), where a pregnant teacher’s contract was not renewed under a “continuity of instruction” policy that applied to all teachers alike regardless of the reason for absence. Castellano, supra, 79 N.J. at 412 , 400 A.2d 1182 . In considering the same argument put forward by the Linden Board, we stated: “We agree that the continuity concept is a legitimate goal for the Board to consider. However, it cannot be adhered to blindly at the expense of the civil rights of teachers.” Ibid.

*414 In 1979 we were concerned about a policy that openly placed women at a disadvantage. We implicitly accepted a policy that would have a disparate impact in Gilchrist, supra, because it was neutral on its face but warned that the.employer’s justification, although legitimate, would not always win the day. Castellano, supra, 79 N.J. at 412 , 400 A.2d 1182 .

This case is not about preferential treatment, as the majority claims. If men and women were both capable of becoming pregnant, women could not be treated differently under equality guarantees. Because men cannot become pregnant, however, employers “can penalize workers on account of their pregnancies with impunity.” Judith G. Greenberg, et al., Women in the Law 99 (2d ed. 1998). I believe that we have reached a point when that result is no longer acceptable.

I would find in this case that the practice of the employer results in a disparate impact on women and remand to the trial court for Hilton to demonstrate, if it can do so, that its policy is both job-related and required by business needs. 5 If Hilton cannot make that showing, I would require that it administer its leave policy in a flexible manner so as reasonably to accommodate women in Christina Gerety’s position.

*415 IV.

For all of the foregoing reasons, I would modify and affirm the trial court’s determination denying summary judgment to defendant Hilton.

Justices LONG and ZAZZALI join in this opinion.

For reversal and remandment — Justices LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO — 4.

For modification and affirmance — Chief Justice PORITZ and Justices LONG and ZAZZALI — 3.

Amicus curiae Employers Association of New Jersey has informed the Court that most employers in New Jersey provide the same generous leave “because New Jersey businesses commonly refrain from taking adverse action against an employee who is receiving temporary disability insurance benefits."

By its reference to pregnant women with medical conditions as a "sub-subclass,” the majority seems to suggest that any disparate impact on this group is not gender discrimination. Ante at 402-04, 877 A.2d at 1240. That is contrary to the PDA.

During the period from 1945 to 2004, by a series of amendments to the statute, the Legislature substantially expanded its categories of concern in recognition of the pervasive nature of discrimination in our society. See, e.g., L. 1970, c. 80, § 14 (prohibiting discrimination on the basis of age, marital status, or sex); L. 1991, c. 519, § 8 (affectional or sexual orientation); L. 1992, c. 146, § 9 (familial status); L. 1997, c. 179, § 1 (genetic information).

The majority points to testicular cancer as an example of "medical conditions that can strike only men and can create, similarly, the need for extended medical leave.” Ante at 404, 877 A.2d at 1240. Under Hilton’s policy, however, men and women suffer from conditions/diseases of their reproductive organs and men and women are given equal leave for treatment related to those conditions. Only women, however, suffer from pregnancy-related conditions.

The federal analogue to this approach, which I follow, is the burden of proof in disparate impact cases, found at 42 U.S.C.A. § 2000e-2(k). It states that

An unlawful employment practice based on disparate impact is established only if

(a) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position and consistent with business necessity ...

[Id. at § 2000e-2(k)(l)(A)(i).]

See also 29 C.F.R. § 1604.10 (c) (providing that “Where the termination of an employee who is temporarily disabled is caused by an employment policy under which insufficient or no leave is available, such termination violates the Act [Title VII] if it has a disparate impact of employees of one sex and is not justified by business necessity").