NJ Supreme Court Appointments and Pregnant Worker Fairness Act
Jeff J. Horn – NJ Family Attorney
This is a gubernatorial election year, hence things like Supreme Court appointments and who will make those appointments bubble up during campaign season.
Will it be Governor Murphy getting a second term or challenger from the Republican side, getting in. I am predicting that the next governor would be appointing four new justices. That is because Justice Albin will age out in July, 2022, Justice LaVecchia would age out October, 2023.
Justice Fernandez Vina will age out February, 2022 and Justice Solomon – newly tenured will age out August, 2024. So four justices during the next governor’s term. However, Justice LaVecchia skipped a line and has announced that she will retire at the end of August, 2021. So I just want to take a minute and talk about Justice LaVecchia, who came on the bench February 1st, 2000 appointed by Governor Whitman came out of government service – a Republican appointee.
She’s not shy to join dissent, to write a dissenting opinion, and certainly not shy about grabbing the bull by the horns and writing for the majority. So she really was an excellent justice, very bright, and in seemingly very much the model of a judge. Recall that us Supreme Court, Chief Justice Roberts in his Senate testimony stated that it’s the job of the judge and the justice to call “balls and strikes” to not have an agenda and utilize service from the bench to legislate. Those words rang true.
By and large judges are very smart, very dedicated, and very much able to separate their politics and personal bias from the facts and the law, which brings us fortunately to a very interesting case that dropped this week.
Justice LaVecchia writing for a unanimous New Jersey Supreme court, a case I’ve been watching for a while called Delanoy. Delanoy is a female police officer working for Ocean Township Police became pregnant, two occasions gave birth, and she brought a claim under the law against discrimination, specifically the Pregnant Workers Fairness Act. And the reason I say I’ve been watching the case is because there was a published opinion from the appellate division authored by Judge Sabatini. One of the very bright ones I will tell you that.
Judge Sabatini had one of my cases crushed by on an emergent appeal, but he was right and thoughtful in his decisive action.
So win or lose. I like decisive judges. Back to this case, it deals with a police officer who becomes pregnant and also needs to express milk as part of breastfeeding the baby.
This case is interesting because it’s the first case that really tightens up on the Pregnant Worker Fairness Act.
And it is her view that she was treated on equally or unfavorably by the Ocean Township Police Department, over a couple of different chiefs of police. Of course, it’s the court’s job to rule on the facts and the law and the record that comes up below and the court did that. And I’ll get to that. The court also served a number of other functions in this Delanoy case, clarifying the legislation from the bench and providing how to advice to plaintiff’s counsel, how to please the three distinct causes of action set forth under the
Pregnant Worker Fairness Act , let’s get to those three causes of action.
Pregnant Worker Fairness Act
First is unfavorable or unequal treatment. So a pregnant worker is covered under a disability clause in the statute.
So for a temporary period of time, a pregnant worker is deemed to be disabled and therefore must be treated fairly and comparably to others that may have a limitation in the workplace. I’ll just jump into it. They had what they called a maternity SOP standard operating procedure and a light duty SOP. The light duty SOP stated that in order to go in order to go on light duty, you’d have to exhaust your accumulated leave. However, the chief of police could waive that requirement. It was discretionary as to whether an officer had to exhaust or accumulated leave.
The maternity SOP did not have a discretionary component.
It was required that the pregnant or breastfeeding police officer exhaust all leave. So we’ll get back to that in a second. Then second cause of action is traditional employment law stuff. That is the reasonable accommodation requirement.
There’s a question of fact here in this case, and the third is penalization.
A law provides that the employer cannot penalize a disabled worker in this case, pregnant or breastfeeding worker because they sought a reasonable accommodation.
And again, the court doubles down explaining to practitioners that you must plead – distinct causes of action under the Pregnant Worker Fairness Act.
Judge Sabatini now at the appellate division found that the maternity SOP violated the statute, the Supreme court Justice LaVecchia characterized the maternity SOP as per se, invalid and unfavorable.
Hence Delanoy wind on liability as it relates to the unfavorable or unequal treatment that she received under the maternity SOP versus the regular light duty SOP on the remand, only causation and damages are to be presented to the jury cause of action. Number two, reasonable accommodation Delanoy in identifying that she was pregnant and in need of an accommodation stated that she could not carry or fire a gun at some point in the pregnancy.
Hence, the question becomes is carrying and firing a gun, an essential function of service as a police officer.
This raises a very interesting question in general, sworn officers are required to have their gun on them at all times. A quick story from the horn family, my father was a New Jersey State Trooper, and I can remember my entire life anywhere. We went, including after grandma’s house. My father would go into the house, go to the cabinet and put his gun in there every single time. So from a little kid’s perspective, it was certainly essential that my father in serving as a New Jersey State Police Officer has gone on him at all times.
Switching from the anecdotal to real statistics, reading a report by the department of justice, indicating that in a given year, the deer are something like 61 million police and public interactions of those 61 million around 2% result in the threat of use of force or the use of force by police officers.
Infinitesimal number of incidents relative to contacts that result in a threat of force or actual force. Of course, that doesn’t even break down whether that threat or force or use of force involves a gun.
So practically speaking, police officers hardly ever have to use their gun. Of course, the counter to this counter is you don’t have to use it because you have it. I get all that, but it’s an interesting question. And one that will be presented to the jury and maybe this case will come back up on an answer to that question. Is it an essential function of a police officer to be able to carry and fire a gun? We will see how that all pans out Justice LaVecchia was very clear in identifying the fact that because pregnancy is temporary, that the question may be different than if an employee needed a permanent accommodation versus a pregnant or officer who only needs the accommodation for a short period of time.
Pregnant Worker Fairness Act – third cause of action.
In Delanoy penalization, the employer cannot penalize an employee who seeks a reasonable accommodation. In this case, the Delanoy stated she was pregnant, needed a reasonable accommodation. So, you could presume that any walk-ins any people coming into the police station would, uh, speak with the officer handling the walk-in desk. And there is another factual dispute regarding whether the walk in duty is a penalty, whether that is something that is an accommodation that penalizes, or is unfair to the worker, that Saudi accommodation. So that will also go back to the jury to determine whether that accommodation was a penalty. The defense here is undue hardship, and you can envision an employer who cannot accommodate the needs of a nail disabled employee. Let’s broaden this out. Uh, I always think about people that do extremely hard and dangerous jobs working on a roof, for example.
Of course, if an employee had a condition, let’s say a condition that caused dizziness, you certainly don’t want that employee climbing up on the roof, falling off, injuring, getting injured, injuring other people, et cetera, et cetera.
So, if that was a permanent condition, there’s no way that the roofing company could accommodate that worker. That worker needs to seek some other employment that doesn’t involve very risky work and could, could be handled without the dizziness condition causing injury to the worker or to others. Hence, the essential function test, whether it’s an essential function to carry and shoot a gun will be part of this picture. And that goes right over to the undue hardship. It’s an undue hardship to an employer. If the employee disabled or pregnant or breastfeeding cannot perform the essential functions of the job, it would be an undue hardship on the employer to accommodate that employee AIAA can have all the police department doing desk duty.
Some officers need to be out on the road and handling the treat work, whereas others can handle the insight work. Don’t be surprised if this case bubbles back up interesting.
Again, the court clarified legislation, teaches lawyers how to plead the case and also taking a cue from Appellate Judge Sabatino, make suggestions on the model jury charge. Judge Sabatino suggested that the model jury charge committee take this case up. And certainly this Supreme Court decision in Delanoy will find its way into the employment law discrimination, law and disability law model, jury charges.
I want to keep teasing you about an interesting topic. Chief Justice Vanderbilt.
Judge Nelson Johnson, most famous as the author of the Boardwalk Empire book that turned into a fantastic TV series on HBO by the same name Boardwalk Empire written by Sopranos.
His screenwriter, Terrance Winter, who by the way, was a lawyer for about five minutes, quit being a lawyer and became a huge TV writer. Judge Johnson is a fantastic speaker has, told many, many, a great tale.
Photo by Neal E. Johnson on Unsplash