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Pregnancy need not be treated differently from other medical conditions or illnesses under state and federal family-leave laws, and an employer does not discriminate by making no exception, a sharply divided New Jersey Supreme Court has ruled. Gerety v. Atlantic City Hilton Casino, No. A-33-04. By a bare 4-3 majority, the court said that a hotel did not violate the state Law Against Discrimination (LAD) by firing an employee for taking more time off than allowed by the company’s leave policy, even though she took the extra time due to a difficult pregnancy. Hilton Casino gave employees 26 weeks of family leave-more than double that required by the federal Family and Medical Leave Act and the state Family Leave Act-but in doing so set a no-exceptions standard: Any employee who exceeded the 26-week limit would be fired. This is precisely what happened to plaintiff Christina Gerety. “We hold that, because defendant’s leave policy was applied non-discriminatorily and not subject to exception, application of that policy to this employee does not create a violation of the LAD,” Justice Jaynee LaVecchia wrote, joined by justices Barry Albin, Roberto Rivera-Soto and John Wallace Jr. Chief Justice Deborah Poritz led justices Virginia Long and James Zazzali in dissent, saying that “the employer’s facially neutral leave policy . . . results in a disparate impact on women such that gender discrimination must be found.” Poritz went on, “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.” The majority rejected the notion that biological differences between the sexes require that pregnant women be given extended leave. An employer doesn’t discriminate “simply by adopting and adhering to a leave policy that even-handedly provides male and female employees alike with lengthy periods of medical leave that nonetheless may not cover completely the entire period of time that an employee’s health needs may require.” There are some conditions, such as testicular cancer, that affect only men and could require them to take more time off than a policy allows, LaVecchia noted. The point is that “whatever the cause of the medical condition, Hilton’s policy impacts men and women equally and specifically prohibits any exceptions . . . a prohibition to which Hilton has adhered without exception,” she wrote.

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