Las Vegas POA

Requiring Pregnant Officer To Use Up Leave Violates Discrimination Law

Written on 04/02/2020
Will Aitchison

Officer Kathleen Delanoy works for the Ocean Township Police Department in New Jersey. When Delanoy found out she was pregnant with her second child, she informed her supervisors her doctor recommended she be taken off patrol. She asked to be transferred to a light-duty or less strenuous position within the Department. She was consequently assigned to non-patrol duty, pursuant to the Department’s Maternity Assignment Standard Operating Procedure (Maternity SOP).

That policy 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. The Maternity SOP also differs from the Department’s policy providing light-duty assignments for nonpregnant injured officers because only the latter policy gives the Police Chief the authority to waive the loss-of-leave-time condition.

Delanoy sued, claiming the Department’s Maternity SOP discriminated against pregnant employees because it was less favorable than the light-duty assignment policy for nonpregnant officers. She contended that requiring her to deplete her accumulated leave time as a condition of her maternity assignment violated a New Jersey state statute prohibiting discrimination against pregnant women.

A state appeals court agreed with Delanoy. The Court noted that under the state statute it was an unlawful employment practice for “an employer to treat, for employment-related purposes, a woman employee that the employer knows, or should know, is affected by pregnancy or breastfeeding in a manner less favorable than the treatment of other persons not affected by pregnancy or breastfeeding but similar in their ability or inability to work.”

The Court held that “the Maternity SOP is less favorable than the light-duty policy in a critical respect. The latter policy, unlike the maternity policy, allows the Police Chief for certain officers to waive the requirement that the officer receiving this benefit must deplete his or her accumulated bank of leave time.

“The two written policies are clearly unequal on their face. No pregnant officers, no matter what positions they hold, can obtain a waiver, whereas some nonpregnant officers can, in the Police Chief’s discretion. The facial difference supports Delanoy’s requests for declaratory and injunctive relief.”

The Court then turned to the City’s argument that it had no duty to reasonably accommodate Delanoy’s pregnancy. As the argument went, Delanoy “did not ask for an accommodation that would enable her to continue to function as a patrol officer, such as, say, an afternoon schedule that would allow her to deal with pregnancy-related morning sickness. Instead, Delanoy asked for a fundamentally different non-patrol assignment in the police station. By her own admission, she could no longer safely carry a gun, which is an essential requirement of an officer working on patrol in the Township.”

The Court found the City’s no duty to accommodate argument is unpersuasive for several reasons: “First, it does not overcome the important distinction between an accommodation that is temporary in nature – during the period while a pregnant employee transitions to childbirth – versus a permanent accommodation that enables an employee to perform her usual job functions on an ongoing and permanent basis. The state statute expressly recognizes that a reasonable accommodation for a pregnant employee can include temporary transfers to less strenuous or hazardous work. The statute thus contemplates that female workers near the end of their pregnancies may temporarily be unable to perform certain essential physical tasks inherent in their regular jobs, but nonetheless have a right to obtain (subject to the employer’s undue hardship exception) a transfer to a temporary assignment that is less strenuous or hazardous.

“Although it is not labeled as such, the Department’s Maternity SOP essentially operates as an accommodation measure for pregnant officers. It is designed to offer a female officer who is nearing the end of her pregnancy and who has physical limitations the opportunity to continue to work in a less strenuous or dangerous assignment and still earn a paycheck. The assignment is a temporary way station that bridges the continued employment of the pregnant employee who needs a workplace accommodation until her child is born. That right of accommodation is in accord with the strong policy objectives of the statute.”

The Court remanded the case for trial, including on the City’s defense that accommodating pregnant officers with light-duty assignments would be an “undue hardship.”

Delanoy v. Township of Ocean, 2020 WL 38861 (N.J. Super. Ct. App. Div. 2020).

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