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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, the New Jersey state Supreme Court ruled July 25. By a bare 4-3 majority, the court said, in Gerety v. Atlantic City Hilton Casino, A-33-04, that a hotel did not violate the state Law Against Discrimination 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, as was 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 “the employer’s facially neutral leave policy in this case results in a disparate impact on women such that gender discrimination must be found.” The dissenters were persuaded by plaintiff’s lawyer Clifford Van Syoc’s argument that Hilton’s hard-and-fast rule discriminated against women because only they can get pregnant. “However laudable the employer’s intentions, pregnancy is unique to women,” Poritz wrote. “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.” But the majority rejected the notion that biological differences between the sexes require that pregnant women be given extended leave. “It goes without saying that only women can become pregnant. And, in their employment actions employers may not discriminate against a female employee because she becomes pregnant,” wrote LaVecchia. “That does not mean, however, that an employer discriminates 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 telling point is that, whatever the cause of the medical condition, Hilton’s policy impacts men and women equally and specifically prohibits any exceptions to the maximum limit, a prohibition to which Hilton has adhered without exception,” she wrote. “Although the length of the human gestation period is an indisputable and well-known fact, neither Congress nor the State Legislature require employers to provide pregnant women with up to nine months of medical leave in the case of high-risk pregnancies.” Both N.J.S.A. 34:11B-1 to -16 and 29 U.S.C.A. 2612 require large-scale employers to give workers a minimum of 12 weeks of unpaid leave for family or medical reasons over the course of a year. LaVecchia said it is the responsibility of the Legislature, not the courts, to impose, if it chooses to do so, a requirement that women with high-risk pregnancies be given more time off than is allowed for in a policy that goes beyond what already is required by law. “Policy arguments may be advanced for mandating statutorily that employers provide for the possibility that pregnant employees may require enhanced leave to cover the panoply of medical needs that may arise during pregnancy,” she said. “That, however, does not justify this Court’s imposition of such a requirement on employers under the mantle of the LAD. To do so would constitute legislating a new minimum medical leave requirement. That we will not do. It is not for this Court to legislate our personal preferences in respect of leave policy for pregnant employees.” Assemblywoman Loretta Weinberg, D-Bergen, a co-sponsor of the state’s Family Leave Act, told The Star-Ledger of Newark, N.J., in a story published last Tuesday that she would review the statute and consider possible changes in the wake of the court’s ruling. Hilton’s attorney, David Garland, calls the ruling “a significant victory for employers” and especially for those that, like Hilton, voluntarily extend the statutory leave period. “They should not be punished because they provide more time off than is required,” says Garland, of Newark’s Sills Cummis Epstein & Gross. Mark Saloman, who argued amicus on behalf of the Employers Association of New Jersey, agrees. “This exonerates employers in New Jersey who go above and beyond what the law requires,” says Saloman, of the Newark office of New York’s Proskauer Rose. “An opposite ruling might have resulted in employers pulling back and saying, ‘If we’re damned if we do, why should we do?’” Van Syoc, who runs a firm in Cherry Hill, did not return calls seeking comment.

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