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The New Jersey Supreme Court recently ruled that an employer’s refusal to extend leave for a woman experiencing complications from pregnancy did not violate the New Jersey Law Against Discrimination. It reached that conclusion by limiting its analysis to whether the employer’s action constituted disparate treatment discrimination or created a disparate impact.

In so doing, it missed the real issue: whether the plaintiff was disabled under the LAD and entitled to a leave of absence as a reasonable accommodation. As a result of this decision, the only group that employers clearly need not provide a lengthy leave of absence to is women disabled by complications from pregnancy. That is an odd and distressing turn of events that should be rectified immediately. In Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391 (2005), decided on July 25, the plaintiff worked for the Atlantic City Hilton, which had a policy of limiting all medical leaves, regardless of purpose, to 26 weeks. In September of 1997, Gerety learned that she was pregnant with twins. Because of serious complications discovered a short time later, she was advised by her doctors to stop working, advice she took beginning on Oct. 5, 1997. She remained out of work for the duration of her pregnancy. As soon as her 26-week leave allotment expired on April 2, 1998, the Hilton terminated her employment. She gave birth on April 14, 1998. The question in the case was whether the employer’s refusal to extend Gerety’s leave was a violation of the New Jersey LAD, N.J.S.A. 10:5-1. The Supreme Court held that it was not, a conclusion it could have reached (or for that matter, declined to reach) without looking beyond cases interpreting the LAD. Instead, it largely ignored LAD cases, particularly those that mattered, and got mired in an imprecise and misdirected examination of federal law. For instance, both majority and dissent viewed the primary issue in the case as whether Gerety could proceed on a “disparate impact” theory: the dissent thought so, the majority did not. Disparate impact is a conceptually difficult cause of action that was devised by the U.S. Supreme Court to address the problem of neutral policies � policies that treat all persons alike and thus are not discriminatory on their face — that nonetheless have a discriminatory effect on protected groups. The classic example is a height/weight restriction, formerly common in high-risk, physically demanding occupations like law enforcement. If police officers are required to be at least 5’8″ tall, and weigh 150 lbs., few women can become police officers. Disparate impact claims are heavily reliant upon statistics and require the plaintiff to prove that the challenged policy falls more harshly on members of his or her protected group than on individuals outside the group. The U.S. Supreme Court has always insisted that to be meaningful, the statistical model proffered by the plaintiff must establish the proper point of comparison: it is not enough that the policy adversely affects some or all members of the protected group; it must do so while favoring nongroup members of the relevant labor market. See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, (1989). Thus the disparate impact question in Gerety should have been, “Is it so that pregnant women need 26-week leaves more frequently than everyone else?” Intuitively, it would seem not: most pregnant women do not need 26-week leaves and plenty of other illnesses cause employees to be out longer. In any event, it would be incumbent upon the plaintiff to make that case statistically, and the record, at least as described by the Supreme Court, is devoid of any suggestion that Gerety had done so. In reaching the conclusion that the plaintiff had proved a disparate impact, the Gerety dissent ignored 30 years of U.S. Supreme Court pronouncements on the subject in favor of a Potter Stewartesque “I know when I see it” test: 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. Gerety, 184 N.J. at 412. In some ways, the majority fairs worse. It never makes the obvious point that the plaintiff simply cannot prove disparate impact. Instead, it focuses on federal case law interpreting the Pregnancy Discrimination Act, 42 U.S.C. � 2000e(k). Under that statute, pregnancy is a protected classification. However, the statute contains an express limitation that reads, in relevant part, as follows: women affected by pregnancy “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” Id. In other words, pregnant employees cannot be treated worse than other employees but are not entitled to job accommodations that would have them being treated better. Because of that limitation, courts have been reluctant to hold that the PDA supports a disparate impact claim when the only basis of the claim is the allegation that pregnant employees need more leave than other employees. See e.g., Stout v. Baxter Healthcare Corp., 282 F.3d 856, 861-62 (5th Cir. 2002). Relying upon PDA case law, the majority arrived at the following conclusion: If an employer treats its pregnant employees no differently than comparable non-pregnant employees in need of extended medical leave, that the LAD is not transgressed. An employer’s failure to provide enhanced leave allotments for its pregnant employees, who may require more time off than the employer’s policy permits, does not constitute discrimination interdicted by the LAD. Gerety, 184 N.J. at 406. The problem with the court’s reliance on the PDA to reach that conclusion is that the LAD, unlike the PDA, contains no express limitation on better treatment for pregnant employees. There is one cryptic reference in the statute, applicable to all protected groups, that individuals have a right to be free of discrimination, “subject only to conditions and limitations applicable alike to all persons.” N.J.S.A. 10:5-4. But that statutory language cannot operate like the PDA’s limitation on better treatment because it does not apply specifically to pregnancy. If it applies to pregnancy, then it also applies to race and gender. And if it applies to race and gender, then there is no such thing as a disparate impact claim in New Jersey; disparate impact, by definition, requiring that protected groups sometimes be treated better than other groups. In essence, the Gerety majority wrote into the LAD, on its own, a “better treatment” limitation solely for use in pregnancy discrimination cases, without any policy justification rooted in the case law or legislative traditions of New Jersey. What is most distressing about Gerety, other than the manner in which it misapplies federal law, is that the court never mentions the cause of action most obviously implicated by the facts. The case is not about purposeful gender or pregnancy discrimination and it is not about disparate impact. It is, rather, a so-called accommodation case — in particular, a case that asks whether a leave of absence can be a reasonable accommodation for an employee who cannot come to work because of a “disability,” a theory that has been percolating up through the lower courts for five or six years. Employment law practitioners have been waiting for guidance on that theory from the state Supreme Court for some time. Gerety provides no such guidance; instead, it generates increased confusion. While some things about the opinion are not clear, what is clear is that Gerety could not work because of serious complications associated with her pregnancy. Such complications would almost certainly constitute a “disability” under the LAD which, unlike the federal Americans with Disabilities Act, does not limit protection to those with substantial or permanent impairments. Soules v. Mount Holiness Memorial Park, 354 N.J. Super. 569, 574-75 (App. Div. 2002). If her complications qualified as a disability, her employer was required to consider a reasonable accommodation before discharging her. N.J.A.C. 13:13-2.5(b)(2). Courts have held that a leave of absence is one type of possible accommodation. See e.g., Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 394 (App. Div. 2002). At least one court has suggested that the leave could not be for an indeterminate amount of time and in no event for longer than one year. Malone v. Aramark Servs., Inc., 334 N.J. Super. 669, 680 (Law Div. 2000). Still another implied that a reasonable accommodation might be a leave that is longer than one year. See Tynan, 351 N.J. Super. at 394 (request for additional leave at the end of eleventh month of leave not unreasonable as a matter of law). In any event, if the theory applies to the facts of Gerety, the employer’s obligation to accommodate might well provide the amount of time plaintiff needed to attend to her medical issues and get back to work. In fairness, at least one court has held that a leave of absence is not a reasonable accommodation under the LAD. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 150-51 (3d Cir. 2004)(holding that regulation, providing that employers need not consider accommodation for employee “who cannot presently perform the job,” precludes leave of absence as reasonable accommodation). Perhaps the Supreme Court, if given a chance, would agree with Conoshenti. Or perhaps the court would have interposed other limitations that would render the theory inapplicable to Gerety’s case. We will not know because the accommodation theory was not addressed. In partial defense of the court, it does not appear that disability discrimination was pled in the case. Or if it was pled, it does not appear that the claim was the subject of the summary judgment motion that formed the basis of the appeal. However, once the research was conducted and the accommodation line of cases found, a number of avenues were open to the court. The case could have been remanded in the interest of justice to allow the proper claim to be asserted. If not subject to remand, the case could have been decided against the backdrop of an unresolved question: namely, the possibility that it could come out differently if pled as a disability case. Instead, here is the backdrop, excerpted from the opinion’s introductory paragraphs: “Plaintiff essentially asks us to carve out a special exception for pregnancy under the LAD, treating it differently from other medical conditions and illnesses.” Gerety, 184 N.J. at 394. The plaintiff was not, as it turns out, seeking an exception but consistent treatment. The court has created an exception, only applicable to women experiencing complications from pregnancy, by failing to consider the reasonable accommodation theory. Samuel J. Samaro is a member of Pashman Stein of Hackensack and is chair of its employment law practice.

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