A Big Win for Pregnant Police Officers: A Jury Finds A New York County's Police Department Liable for Failing to Accommodate Pregnancy-Related Disability

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Tuesday, Jun. 27, 2006

Recently, a New York jury in ruled in favor of six female police officers who had alleged that the Suffolk County Police Department (SCPD) discriminated against them when they were pregnant.

The plaintiffs' monetary recovery was relatively small -- between $5,000 and $23,000 each. But the anti-discrimination principles vindicated by the verdict are important: Fair treatment of pregnant workers is an essential component of workplace equality for women.

The Unfair Treatment Alleged and Proven in this Case

Prior to 2000, the SCPD had permitted officers with disabilities of any origin to request and obtain so-called "light-duty" assignments - that is, alternatives to patrol that required less physical exertion and posed less risk of injury. Such assignments included desk jobs, but also positions as academy instructors, drug program instructors, and beach patrol officers.

Many pregnant officers made use of this policy: Forty-five percent of light duty assignments awarded to officers injured off duty were given to pregnant women, and seventy-five percent of the light-duty assignments taken by women because of an off-duty disability were because of pregnancy. These assignments averaged fewer than six months in duration.

But in 2000, the SCPD adopted a new policy that light duty assignments would only be available to officers who became disabled while on duty. (I wrote about a similar on-duty-injury-only policy used by a trucking company, and challenged in court as discriminatory, in my last column.)

As a result, many pregnant officers were forced to take unpaid leave and to suffer a concomitant loss of benefits, seniority, and opportunities for advancement. In some cases, they ended up using all available sick and vacation time during pregnancy, and then had none left to recover from childbirth.

There was strong evidence in the record that the policy not only had a discriminatory impact, but also reflected discriminatory intent. (The plaintiffs sued on both theories). For instance, plaintiff Sarah MacDermott alleged that she was denied a light-duty assignment while pregnant, even though a male officer who had been injured off duty after the new policy was adopted was given just such an assignment. And

Sandra Lochren - who had been working as a drug prevention instructor for four years when she told her supervisor that she was pregnant - was transferred to a different precinct and ordered to go on patrol.

Moreover, the SCPD did not have - and did not acquire -- bulletproof vests that fit most women in the later months of pregnancy. So even if the plaintiffs had wanted to remain on patrol, they would have lacked proper safety precautions.

Unwilling to either give pregnant women "light duty" assignments or outfit them properly to go on patrol, the SCPD, in effect, took the view that they belonged barefoot and in the kitchen - paying for their own leave despite pregnancy-related disabilities.

The Plaintiffs' Legal Theories: Disparate Treatment and Disparate Impact

Plaintiffs sued under Title VII, a federal law prohibiting employment discrimination, and under an analogous New York law. As noted above, they alleged two types of illegal discrimination: "disparate treatment" and "disparate impact."

"Disparate treatment" is defined as intentional discrimination towards an employee on the basis of a protected characteristic such as sex. (By virtue of the Pregnancy Discrimination Act of 1978, pregnancy discrimination is sex discrimination. Thus, employers cannot lawfully make decisions on the basis of sex or pregnancy.) Disparate treatment theory can be used to attack a policy that is explicitly discriminatory, or to attack individual employment decisions or actions that are taken because of an employee's sex (or race, ethnicity, religion, etc.).

"Disparate impact" discrimination, in contrast, is the theory used to attack a policy that is neutral on its face but that has a disproportionate and adverse impact on a protected group, such as women.

This type of situation - challenging a policy in a male-dominated profession with norms unintentionally designed around a prototypical male officer - is exactly why disparate impact theory exists.

The plaintiffs were wise to use both theories. On one hand, there was evidence of intentional discrimination here, supporting a "disparate treatment" theory. On the other hand, if the policy had been applied evenhandedly, it was neutral on its face - because it makes a distinction between off-duty and on-duty disabilities, not between pregnancy-related disabilities and other disabilities - and thus not amenable to attack under a disparate treatment theory.

The EEOC's Finding and the Jury's Ultimate Decision

In 2003, the federal Equal Employment Opportunities Commission (EEOC) found that the SCPD female officers had probable cause to sue for pregnancy discrimination under Title VII. The suit then advanced to federal court, where it was tried to a jury in early June. After a 3-day deliberation, the jury ruled in favor of the plaintiffs. While a jury verdict is not as revealing as a written judicial opinion, it appears that the plaintiffs prevailed, at least in part, on both theories of discrimination, disparate treatment and disparate impact.

Two plaintiffs were found by the jury to have proven intentional discrimination - that is, they proved that they were singled out because of pregnancy (and therefore because of sex) for unfair treatment. Evidence - from cases like Sarah McDermott's -- that the light-duty policy was ignored when non-eligible men made requests, but strictly enforced when pregnant women did, was no doubt important to the jury's finding.

Indeed, no pregnant woman successfully garnered a light-duty assignment after the policy changed in 2000, while there were several examples of other deviations from the policy. Bending the rules for others, but not pregnant women, smacks of intentional discrimination.

A finding of intentional discrimination was not entirely surprising, particularly since the SCPD is already governed by a broad consent decree that resulted from a lawsuit twenty years ago alleging race, gender, and ethnicity discrimination within the Department. That suit, and this one, suggest that the climate for women in the SCPD has in the past been, and still is, less than ideal.

The Most Important Aspect of the Verdict: The Disparate Impact Finding

What really makes this case important, however, is not the finding of intentional discrimination. After all, police and fire departments have a long history of being sued for different forms of intentional sex discrimination, including discrimination in hiring and sexual harassment. It is the disparate impact theory that sets this case apart from other recent ones.

As I noted above, disparate impact theory permits plaintiffs to seek remedies for unintentional discrimination. This theory says that even if the SCPD can show that it did not adopt the new policy in order to disadvantage pregnant officers, the plaintiffs can still prove it unlawful.

Under disparate impact theory, plaintiffs begin with the burden to show that a facially neutral policy - and as I discussed above, one might argue this was such as policy -- has a statistically disproportionate impact on a protected group. Using the statistics noted above, plaintiffs were easily able to carry this burden.

The burden then shifts to the employer to show the business necessity for the policy. The SCPD, too, carried its burden: It said that it wanted to reduce corruption and the abuse of light-duty assignments. Apparently, it feared officers would fake or exaggerate off-duty injuries to get light work even though they were not genuinely disabled.

In this case, both of these burdens were met. That meant that the burden shifted back to the plaintiffs: To win, they had to show that the proclaimed business necessity could be met in a less discriminatory manner.

The jury found that it could be. And no wonder: While officers might be able to fake off-duty injuries, it is very hard to fake pregnancy!

The jury rightly found that the SCPD could work around its concern with the abuse of light-duty assignments, without imposing such a significant and recurring penalty on female officers - most of whom will bear children during the formative stages of their careers.

Why Conflicts Like This Arise: The Lack of Adequate Family Leave in the United States

To understand why this suit arose, one must appreciate the basic legal framework for dealing with pregnancy in the workplace. Though I explained them in greater detail in my earlier column, the basic principles are as follows: Employers are under no obligation to accommodate any disability resulting from pregnancy or childbirth. Employers are also under no obligation to provide paid leave for pregnancy-related disability, childbirth, or infant care.

With respect to pregnancy and childbirth, there are only two minimum requirements by law: First, an employer must treat pregnant women at least as well as employees with comparable temporary disabilities. Second, an employer with at least 50 employees must provide twelve weeks unpaid leave under the Family and Medical Leave Act (FMLA) if needed for pregnancy-related disability, childbirth, or new parenting.

This legal framework often leaves women with pregnancy- or childbirth-related disability in a bind of one sort or another. Nearly forty percent of employees either work for employers who are not covered by the FMLA (because it does not have enough employees), or are themselves not eligible for leave under it (because they have not worked there long enough or regularly enough).

Moreover, even those who are eligible often cannot afford to take FMLA leave because it is unpaid. And even if employees can afford it, or can take accrued paid leave or paid vacation days during that time, the twelve-week limit is often not enough to cover both a serious pregnancy-related disability, and time to recover from childbirth.

Together, these rules mean that an employer can say to a pregnant woman that she must either perform all her job duties, despite medical advice to the contrary, or take unpaid FMLA leave that she cannot afford. And if she doesn't fall within the FMLA, the employer can simply fire her for failing to meet job requirements.

Legislative Solutions to the Problem of Pregnancy- and Childbirth-Related Disability: California's Progressive Approach

Is there a solution? First, under federal law, employers should be required to accommodate pregnancy-related disability, just as they are required to accommodate permanent disabilities under the Americans with Disabilities Act.

California law already does this: It defines an "unlawful employment practice" to include an employer's refusal to "temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated."

Had this type of law been in effect in New York, the SCPD case would never have arisen because light-duty assignments would have been made available where necessary to pregnant women.

Second, employers or the government should provide at least some paid leave for pregnancy-related disability, childbirth, or parenting. Again, California stands out as a model: It enacted a law in 2000 that uses the state disability insurance program to provide some paid leave to workers who have to take time off to care for an ill family member, or to bond with a new child. Under this law, employees can receive at least partial wage replacement for up to six weeks a year for any covered purpose. (A similar law has been introduced in the New York legislature.)

Why Other States, and Congress, Should Follow California's Lead

Other states - and, ideally, Congress -- should follow California's lead to guarantee pregnant women the leave they need.

As it is, pregnancy discrimination operates as a real limit on the ability of women to achieve workplace equality. This is particularly so in traditionally male occupations such as law enforcement. And it shouldn't be that way. The law currently is too far toward one extreme - the extreme of letting pregnant women workers fend for themselves financially and medically, despite genuine disabilities and hardships.

The other extreme, too, would be wrong: It would do a disservice to women to demand work relief for all pregnant women, regardless of their jobs and regardless of their individual ability to work. Indeed, a policy automatically relegating pregnant women to light-duty work, despite their and their doctors' agreement that they were fit to continue their normal duties, is another kind of discrimination - one that was successfully challenged and, in theory, eliminated decades ago.

In sum, the law should do its part to ensure that women can become mothers and still remain workers - whether that means continuing in their normal duties, or taking necessary leave and returning to their jobs later. It's not too much to ask that the law reflect the realities of pregnancy and childbirth. But as of now, it does not.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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