Articles Posted in Pregnancy Discrimination

Can a Catholic Church which owns and operates a religious parochial school discharge one of its unmarried teachers because she became pregnant in violation of the Catholic Church’s teachings and her employment contract which both forbade engaging in premarital sex?  In Crisitello v. St. Theresa School, 2023 N.J. LEXIS 847 (2023), the New Jersey Supreme Court answered this question in the affirmative when it reversed the Appellate Division’s reversal of a trial court’s grant of summary judgment to St. Theresa’s under the “religious tenets” exception contained in the New Jersey Law Against Discrimination (LAD) at N.J.S.A., 10:5-12(a).

In response to her firing, plaintiff Crisitello filed a complaint in the New Jersey Superior Court against St. Theresa’s alleging employment discrimination in violation of the LAD based on pregnancy and marital status.  St. Theresa’s answered by claiming that their decision to terminate Crisitello was protected by both the First Amendment and LAD. In deciding this case in favor of the defendant the Supreme Court restricted its analysis to the LAD.

At the trial court level, the court concluded that Crisitello had failed to show that St. Theresa’s “proffered reason [for her termination] was false and that the real reason was motivated by discriminatory intent.” *20.  However, the Appellate Division disagreed with the trial court holding that “knowledge or mere observation of an employee’s pregnancy alone is not a permissible basis to detect violations of the school’s policy and terminate an employee,” and reaffirming its earlier determination that Crisitello made a prima facie case of discrimination under the LAD. *20-21.

In 2014, the New Jersey Pregnant Workers’ Fairness Act (“NJPWFA”) was signed into law to strengthen protections afforded pregnant employees. Under the NJPWFA, employers must provide pregnant workers reasonable accommodations that would allow them to continue working in their positions. The NJPWFA forbids employers from treating pregnant workers in a “manner less favorable than the treatment of other persons not affected by pregnancy.” N.J.S.A. 10:5-12(s). However, the statute does not require employers to afford pregnant employees with the same reasonable accommodations it gives to nonpregnant injured workers similar in their ability or inability to work.

The NJPWFA provides examples of reasonable accommodations, “such as…temporary transfers to less strenuous or hazardous work.” This means that if a pregnant worker requested a temporary transfer to a light-duty position made available to a similarly situated nonpregnant injured worker, then the pregnant employee should be entitled to such an accommodation under the NJPWFA. Our New Jersey Appellate Division recently addressed this very issue in Delanoy v. Twp. of Ocean, 2020 N.J. Super. LEXIS 1, *2 (Decided January 3, 2020)

In Delanoy, plaintiff, a pregnant police officer, notified her employer of her doctor’s order prohibiting her from performing certain essential patrol officer functions (e.g. carrying a gun) during the later stages of  her pregnancy, and in turn recommended she be removed from patrol duty and transferred to a “light-duty” position during such time. The employer police department (the “Department”) assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’)…which allows pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time) before going on that different assignment.” Id. at *3. The Department also maintained an almost identical “Light-Duty SOP” for nonpregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. When the Department refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The Department argued that plaintiff’s transfer to a fundamentally different assignment did not constitute an accommodation as defined by the LAD because plaintiff was not entitled to a reasonable accommodation since none existed that would allow her to continue performing the essential functions of a patrol officer while pregnant.

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