Articles Posted in Pregnancy Discrimination

Last month, the New Jersey Supreme Court addressed the New Jersey Pregnant Workers Fairness Act (“PWFA”) for the first time.  The PWFA is an amendment to the New Jersey Law Against Discrimination (“LAD”) that prohibits pregnancy discrimination.

Pregnant worker experiences discrimination at jobKathleen Delanoy is a police officer.  She filed a lawsuit in which she alleged her employer, the Township of Ocean, discriminated against her because she was pregnant.  However, the trial court dismissed her case on a motion for summary judgment.

As discussed in my previous article, Appellate Court Recognizes Employers Must Accommodate Pregnancy, the Appellate Division subsequently reversed that ruling.  Ocean Township asked the New Jersey Supreme Court to review that decision.

The New Jersey Pregnant Workers Fairness Act

Last month, New Jersey’s Appellate Division analyzed the New Jersey Pregnant Workers Fairness Act (“PWFA”).  The PWFA is an amendment to the New Jersey Law Against Discrimination (“LAD”) that prohibits pregnancy discrimination in the workplace.

Among other things, the PWFA requires employers to provide reasonable accommodations to women who are pregnant.  For example, this can include providing bathroom breaks, rest breaks, assistance with manual labor, job restructuring, and temporary assignment to less strenuous or less hazardous work.  However, employers do not have to provide an accommodation if it would impose an undue hardship on it.

On August 3, 2017, New Jersey’s Appellate Division reversed a trial court’s opinion that had dismissed an employee’s pregnancy discrimination case, finding enough evidence from which a jury could conclude that the company’s claim it fired her for insubordination was a pretext for (excuse to cover up) discrimination.

Employee wins appeal in pregnancy discrimination caseSandra Roopchand worked as a medical technician for Complete Care, a medical office, from January 2013 through July 2014. The business was run by two brothers-in-law, Richard Schaller, M.D. and Robert Fallon, D.C.  Ms. Roopchand’s job duties included patient care, administrative responsibilities and cleaning and restocking the exam rooms. Up until the day she was fired, Complete Care had never disciplined Ms. Roopchand or criticized her about her job performance.

In early July 2014, Ms. Roopchand learned she was pregnant.  Since she suffers from hypothyroidism, her pregnancy was considered high-risk.

The United States Supreme Court recently ruled that the federal Pregnancy Discrimination Act (“PDA”) can require employers to provide reasonable accommodations to women who are pregnant even if they are not disabled.

The PDA establishes that pregnancy discrimination in the workplace violates federal law. It also includes a provision that requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

Supreme CourtIn the case, Peggy Young worked for United Parcel Service, Inc. (“UPS”) as part-time driver. Although UPS requires its drivers to be able to lift packages up to 75 pounds, during the first 20 weeks of her pregnancy Ms. Young’s doctor advised her not to lift more than 20 pounds. UPS provides accommodations to disabled employees who are unable to lift 75 pounds, as well as to employees who have lost their Department of Transportation certifications. The company refused to provide this accommodation to Ms. Young. Instead, it placed her on an unpaid leave of absence during most of her pregnancy. Ms. Young sued, alleging UPS violated the PDA by failing to accommodate her lifting restrictions.

A few weeks ago, the United States Equal Opportunity Commission (EEOC) issued new enforcement guidelines regarding the federal Pregnancy Discrimination Act (PDA) and related claims under the Americans with Disabilities Act (ADA).

The PDA prohibits most employers from discriminating against employees based on pregnancy, childbirth or related medical conditions. It also requires them to treat women based on their ability or inability to work, rather than based on pregnancy, childbirth, or related medical conditions. The ADA prohibits employers from discriminating against employees because they have a disability, including a pregnancy-related disability. It also requires employers to provide reasonable accommodations to permit disabled employees to perform the essential functions of their jobs.

Casual pregnant businesswoman smiling at computer at her desk inThe EEOC’s guidelines make it clear employers cannot discriminate against employees based on a current or past pregnancy. It notes employees are more likely to prove discrimination claims based on past pregnancies when the employer takes an adverse action (such as termination or demotion) relatively quickly after the employee gave birth. For instance, there can be a strong inference of pregnancy discrimination when an employer takes a negative action while the employee is still on a maternity leave, or right after she returns from one.

Yesterday, Governor Christie signed a law that prohibits pregnancy discrimination in New Jersey. The Act, which is an amendment to the New Jersey Law Against Discrimination (“LAD”), adds pregnancy to the list of legally protected categories. Importantly, it defines “pregnancy” broadly to include not only pregnancy itself but also childbirth, medical conditions related to pregnancy or childbirth, and recovery from childbirth.

Thumbnail image for Thumbnail image for Thumbnail image for New Jersey Passes Law Prohibiting Pregnancy Discrimination.jpgThe new law is expressly premised on the fact that “pregnant women are vulnerable to discrimination in the workplace in New Jersey.” It notes that “women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.” Its goal is to eliminate those forms of discrimination from the workplace.

In the past, many court opinions have found pregnancy discrimination to be a form of unlawful gender discrimination. However, not every court has agreed, leaving some uncertainty in the law. This new law removes any doubt that it is unlawful for an employer to treat a woman worse because of her pregnancy or childbirth, and makes it clear that employers cannot treat pregnant women less favorably than their similarly situated coworkers.

Last week I discussed Colicchio v. Merck & Co., Inc., a case involving an employee who claims her employer Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave. The employee in that case, Kerri Colicchio, also claims her employer failed to promote her because of her gender and pregnancy, and retaliated against her for objecting to violations of the New Jersey Law Against Discrimination (LAD).

The judge allowed Ms. Colicchio to proceed with her claim that the company failed to promote her to the position of Vice President of Global OE. Ms. Colicchio testified that her supervisor told her she was not being considered for that position on an interim basis expressly because she was about to go out on a maternity leave. The judge found this was not “smoking gun” evidence since the comment involved the interim position, and Ms. Colicchio was suing Merck for failing to offer her the job on a permanent basis. However, he found the comment showed the company used Ms. Colicchio’s pregnancy as an important negative factor in making employment decisions about her. In other words, it was evidence of pregnancy discrimination.

bigstock-Muslim-arabic-muslim-business--29490224.jpgThe judge also found Merck’s justification for its decision not to promote Ms. Colicchio was not a legitimate, non-discriminatory reason. Specifically, Merck claims it decided to consider only external job candidates for the position. The judge called this explanation “barely more than no reason at all,” since the company did not indicate why it decided not to consider internal candidates. This is noteworthy, since it potentially means Merck does not have a valid defense to Ms. Colicchio’s claim that it failed to promote her because of her gender and pregnancy.

However, the court dismissed Ms. Colicchio’s retaliation claim. It explained that to be protected by the LAD, an objection has to either expressly or implicitly indicate that the company treated an employee differently based on a legally protected category. For example, an employee who objects to race, age, or gender discrimination would be legally protected from retaliation under the LAD. However, when Ms. Colicchio made her internal complaints, she only indicated she was being treated unfairly, without stating or implying she believe the unfair treatment was due to her gender or pregnancy. As a result, the Judge ruled that Ms. Colicchio does not have a valid retaliation claim.

Continue reading

Yesterday, the United States Equal Employment Opportunity Commission (EEOC) issued a Press Release regarding pregnancy discrimination in the workplace. The EEOC is a federal agency that helps enforce laws prohibiting employment discrimination claims based on race, color, religion, sex, pregnancy, national origin, age, and disability, as well as related retaliation claims.

The EEOC’s Press Release recognizes that “employers should not make decisions based on stereotypes and presumptions about the competence” of pregnant employees. But even though the federal Pregnancy Discrimination Act was passed more than 30 years ago, and “most pregnant women want and need to work,” pregnancy discrimination continues to be a major problem in the workplace.

Pregnant Business Woman.jpgThe EEOC indicates that women make up 47% of today’s workforce, and are either the primary or co-primary breadwinners in almost two out of every three families. As a result, in the words of the Senior Advisor for the National Partnership for Women & Families, Judith Lichtman, “women cannot afford to lose their jobs or income due to pregnancy or childbirth.”

The Press Release notes that in addition to pregnancy discrimination, both male and female caregivers experience significant discrimination in the workplace. It recognizes that these forms of employment discrimination are becoming bigger problems, and that parents are struggling to balance their obligations at work with their obligations to their families. As I discussed in a previous article, in 2009 the EEOC issued guidelines regarding Discrimination Against Caregivers. The EEOC’s Press Release promises to “vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

Continue reading

Yesterday, a federal Judge in Manhattan dismissed a class action claim from a gender and pregnancy discrimination lawsuit that the United States Equal Employment Opportunity Commission had filed against Bloomberg L.P. In the case, the EEOC alleged that Bloomberg had engaged in a pattern and practice of discrimination against pregnant employees and female employees upon their return from maternity leaves. Judge Loretta A. Preska, the Chief Justice of the United States District Court for the Southern District of New York, dismissed the class action claim because she found the EEOC had not presented enough evidence to prove a pattern and practice of gender or pregnancy discrimination.

A pattern and practice case is when a group of employees claim a company has a broad practice or systemic pattern of unlawful discrimination. In this instance, the EEOC filed the lawsuit on behalf of female employees who claimed Bloomberg had demoted them, lowered their salaries, reduced the number of employees reporting to them, took away some of their job responsibilities, excluded them from meetings, and/or otherwise subjected them to stereotypes about female caregivers. In addition to the three plaintiffs named in the original lawsuit, 78 other women had joined the case, for a total of 81 class members.

Pregnancy Discrimination 2.jpgIn her 64-page opinion in EEOC v. Bloomberg L.P., Judge Preska explained that ordinarily employees have to prove a pattern and practice of discrimination with a combination of statistical and anecdotal evidence of discrimination, to show the discrimination was part of a company-wide pattern or practice. She indicated that it is unusual that anecdotal evidence alone can prove a pattern or practice of discrimination, especially at a large company like Bloomberg, which employs more than 10,000 employees.

However, the EEOC apparently did not have any statistical evidence to support its claim. It also did not have any direct evidence of discrimination, or any evidence of an explicitly discriminatory policy. Instead, it tried to rely only on anecdotal evidence of discrimination. This evidence included the fact that nearly every one of the class members claimed that Bloomberg had decreased her compensation, job responsibilities and/or number of direct reports, either after she became pregnant or after she returned from her maternity leave.

In contrast, Bloomberg had at least two expert witnesses who concluded that there was no pattern or practice of discrimination at the company. Specifically, one of Bloomberg’s expert witnesses, Dr. Michael Ward, used statistics to conclude that class members actually received higher average compensation than non-class members. He also found no significant differences between the raises class members received versus non-class members. Another expert for Bloomberg, Dr. John Johnson, concluded that the class members actually received nearly better raises after maternity leaves than employees who took time off for other reasons.

Ultimately, the Court concluded that while there might be some individual cases of pregnancy and gender discrimination at Bloomberg, the EEOC did not have enough evidence to prove a pattern or practice of discrimination. Accordingly, Judge Preska dismissed the class action from the case. However, the EEOC has indicated that it intends to continue to pursue the individual claims on behalf of the named plaintiffs.

Continue reading

In an important employment law decision, on June 8, 2011, New Jersey’s Appellate Division ruled that an employee can enforce her employer’s promise that she would have a job when she returned from her maternity leave. The Court reached that conclusion even though the company, Telcordia Technologies, Inc., included a clear disclaimer in both its Code of Business Ethics and the employee’s job application which stated that she is an employee-at-will who can be fired “at any time, with or without grounds, just cause or reason and without giving prior notice.”

In Lapidoth v. Telcordia Technologies, Inc., employee Sara Lapidoth asked her employer for a six-month maternity leave from her position as a manager on a product called ARIS, for the birth of her tenth child. The letter Telcordia sent her granting her leave also guaranteed that the company would reinstate her to the same job or a comparable one if she returned to work within 12 months. Ms. Lapidoth later asked Telcordia to extend her leave by 6 months, for a total of a one-year maternity leave. Telcordia granted her request through another letter that promised to reinstate her at the end of her leave.

Pregnancy Discrimination.jpgHowever, before Ms. Lapidoth was ready to return from her maternity leave, Telcordia decided to eliminate one of its two ARIS manager positions. The company decided to lay off Ms. Lapidoth because the only other ARIS manager had slightly better performance ratings. Since the company did not have any appropriate job openings, it fired Ms. Lapidoth.

The Appellate Division ruled that Ms. Lapidoth’s maternity leave was not protected by the Family and Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA) because she took off more than 12 weeks. Both the FMLA and the NJFLA require employers to give qualified employees up to 12 weeks off for the birth of a child.

However, the Court ruled that the letters Telcordia sent to Ms. Lapidoth could be enforceable employment contracts that guaranteed her a job when she was ready to return from her maternity leave. It found that, even though the company’s Code of Business Ethics and Ms. Lapidoth’s employment application said she was an employee-at-will, and indicated that nothing else could create any contractual rights between her and the company, the letters granting her maternity leave seemed to contradict those statements. The Court also stated that, although the letters said the company did not have to reinstate Ms. Lapidoth if it had to eliminate her job, that was not necessarily a defense because the company decided it had to eliminate one of two ARIS manager positions, but not necessarily Ms. Lapidoth’s position. The Court also noted that Telcordia reinstated Ms. Lapidoth after each of her nine previous maternity leaves. Based on the circumstances, the Appellate Division concluded that a jury could find the letters guaranteeing Ms. Ladipodth a job at the end of her maternity leave created an enforceable employment contract.

Continue reading

Contact Information