Castellano v. Linden Bd. of Ed.

• Decision Date: 27 March 1978
• Parties: , 21 Fair Empl.Prac.Cas. (BNA) 229 Sandra CASTELLANO, Complainant-Respondent, v. LINDEN BOARD OF EDUCATION, Frank Mannuzza and Americo Taranto, Respondents-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 350

158 N.J.Super. 350

386 A.2d 396, 21 Fair Empl.Prac.Cas. (BNA) 229

Sandra CASTELLANO, Complainant-Respondent, v. LINDEN BOARD OF EDUCATION, Frank Mannuzza and Americo Taranto, Respondents-Appellants.

Superior Court of New Jersey,Appellate Division.

Argued Oct. 25, 1977.

Decided March 27, 1978.

Yale Manoff, Springfield, for respondents-appellants (Weinberg, Manoff & Dietz, Springfield, attorneys; David P. Ericksen, Springfield, on the brief).

Joseph M. Gorrell, Deputy Atty. Gen., for respondent Sandra Castellano and the Division on Civil Rights (William F. Hyland, Atty. Gen., attorney; Erminie L. Conley, Deputy Atty. Gen., of counsel).

Before Judges LORA, SEIDMAN and MILMED.

The opinion of the court was delivered by

SEIDMAN, J. A. D.

The Linden Board of Education, its president, Frank Mannuzza, and the Superintendent of Schools, Americo Taranto (referred to collectively hereafter as the board), appeal an order issued on July 22, 1976, by the Director of the Division of Civil Rights, determining that they had violated the Law Against Discrimination of the State of New Jersey, N.J.S.A. 10:5-1 et seq., specifically N.J.S.A. 10:5-4 ¹ and N.J.S.A. 10:5-12(a), ² directing them to cease and desist from doing any act prohibited by that law, and granting certain relief to the complainant, Linda Castellano, a teacher employed by the Board.

The controversy involves provisions contained in the collectively negotiated agreement between the board and the Linden Education Association for the period July 1, 1974-June 30, 1975, respecting maternity leaves of absence and sick leave benefits. We are called upon to decide on this appeal whether requiring a pregnant female teacher to take a mandatory maternity leave of absence, and refusing to allow her to utilize accumulated sick leave during absence due to childbirth constitute impermissible discrimination on the basis of sex.

Under Article XXII, paragraph C, of the agreement, a tenured teacher, upon becoming pregnant or within two months thereafter, must apply to the board for leave of absence without pay, starting "with the termination of the seventh (7) month of pregnancy" as determined by her attending physician or, in the absence of a statement from such physician, by a board-designated physician. Upon the commencement of such leave, the teacher is required to submit to the board a written request to return at the beginning of either the next school year following termination of her pregnancy, or the next succeeding year thereafter. Article XIX, dealing with allowable sick leave and the accumulation thereof, makes no special reference to absence on account of pregnancy.

Complainant, a tenured first grade teacher, was pregnant and gave birth on August 29, 1974. Although she informed the board of her wish to return to her teaching duties and was certified by her physician as being able to do so as of September 27, she was advised by the Superintendent of Schools that she would have to take a maternity leave of absence from September 1, 1974 to June 30, 1975 because of the terms of the contract and to "establish some stability in the classroom." She was also informed that her request for sick leave was denied.

A complaint was thereupon filed with the Division of Civil Rights. After a hearing the hearing examiner determined that the sick leave policy as it applied to pregnancy-related disabilities violated the Law Against Discrimination, in that permitting teachers to take sick leave for all illnesses or disabilities other than for pregnancy "has the effect of discriminating against women as pregnancy is characteristic of their sex." He found further that the board failed to establish that the maternity leave of absence provision was a matter of "business necessity" and that refusing to permit complainant to return to work on or about October 1, 1974 also constituted discrimination against her in the terms and conditions of employment because of sex.

The hearing examiner recommended that the board be held "jointly and severally liable to the complainant for back pay in the amount of $3,557.10 gross"; that complainant's accumulated sick time be "credited with sixteen days (after she has received payment of back pay)," and that she be awarded damages for humiliation, pain and mental suffering in the amount of $600.

Adopting the report and recommendations of the hearing examiner, the Director of the Division found that the complainant had been discriminated against on the basis of her sex. He ordered the board to (1) cease and desist from discriminating on the basis of sex and/or pregnancy; (2) treat disability caused by pregnancy like any other temporary disability; (3) permit teachers to utilize accumulated sick leave for pregnancy and pregnancy-related disabilities; (4) permit teachers to return to work after maternity leave when they wished to do so and were physically able, and (5) extend the provisions for leave for child care to male as well as female employees.

The board contends on this appeal that neither the requirement of a mandatory maternity leave of absence nor the refusal to allow utilization of accumulated sick leave for absence due to childbirth violates the Law Against Discrimination. It further contends that the Director of the Division erred in awarding damages and that the scope of the order was overly broad.

Addressing first the matter of the mandatory leave of absence policy under scrutiny, we hold that the contract provision did discriminate against complainant on the basis of sex, in violation of the Law Against Discrimination.

The board's reliance upon a need for "continuity of instruction," unquestionably a valid consideration, Gilchrist v. Haddonfield, Bd. of Ed., 155 N.J.Super. 358, 382 A.2d 946 (App.Div.1978), is nonetheless misplaced here. The temporary absence of any teacher, male or female, because of physical disability, would tend to be disruptive of classroom instruction. The singling out of pregnancy-related disabilities in the board's expression of concern over the continuity of instruction, thereby ignoring all other extended absences because of physical disability, only emphasizes the discriminatory nature of the policy.

A sensible rejoinder to the board's otherwise legitimate need for advance planning is found in Green v. Waterford Bd. of Ed., 473 F.2d 629 (2 Cir. 1973):

Plaintiff admits the obvious, that men do not become pregnant, but points out that men, being human, are also subject to crises of the body, some of which, like childbirth, give ample warning: A cataract operation or a prostatectomy, for example, may be planned months ahead. Because male teachers are not forced by defendant Board to take premature leave because of a known forthcoming medical problem, female teachers should not be treated differently. (at 634)

It is to be noted, further, as the board acknowledged at the hearing, that substantial numbers of substitutes were utilized in the schools for periods of weeks and, at times, months. Yet only teachers disabled on account of childbirth were not permitted to return to work when physically able to do so.

In Cedar Rapids Community School Dist. v. Parr, 227 N.W.2d 486 (Iowa Sup.Ct.1975), the court struck down as discriminatory a school district's mandatory leave regulation requiring pregnant teachers to commence their leave no later than the end of the fifth month of pregnancy and to return to work not before the commencement of a new academic year without the district's approval. The court said:

Every human, regardless of sex, is subject to crisis or physiological disabilities of the body. Here the regulation isolates pregnancy from all other disabilities or physical conditions and makes it subject to the restrictive provisions therein provided. Noticeably, in the case of other illnesses or debilitating conditions an individual is not required to cease employment at a fixed time and return to work following recovery at a set date regardless of the employee's wishes or medical advice. Any person affected by a disability, other than pregnancy, ceases employment and thereafter returns to work when he or she alone deems it proper to do so. But this is not the case where the individual becomes pregnant. Unquestionably, such discriminate treatment is limited to sex alone. (at 493)

See also, Union Free School Dist. No. 6, etc. v. New York St. H.R.A.B., 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859 (Ct.App.1974); Farris v. St. Louis Bd. of Ed., 417 F.Supp. 202 (E.D.Mo.1976); Fabian v. Indep. School Dist. No. 89 of Okl. City, 409 F.Supp. 94 (W.D.Okl.1976).

We are unable to discern any rational basis for a mandatory leave of absence rule which, in its particular application to the complainant in this case, arbitrarily and without medical reason prevents a physically capable woman from returning to her job simply because the temporary disability is occasioned by pregnancy. ³ Since in no case of physical disability other than pregnancy is a teacher required to cease employment and not return before a fixed date, there is thus imposed on women, without business necessity or other justification, a substantial burden that men need not suffer. See Nashville Gas Co. v. Satty, --- U.S. ----, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977). Cf. Cleveland Bd. of Ed. v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).

The fact that the policy is set forth in a collectively negotiated agreement cannot justify it. Rights assured by the Law Against Discrimination may not be bargained away either by the employer the employees' negotiating representative, or both acting in concert. Robinson v. Lorillard Corp., 444 F.2d 791, 799 (4 Cir. 1971), cert. dism. 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 665 (1971); Union Free School Dist. No. 6, etc. v. New York St. H.R.A.B., supra, 362 N.Y.S.2d at 143, 320 N.E.2d at 862; see Soricelli v. Board of Review, 46 N.J.Super. 299, 311, 134 A.2d 723 (App.Div.1957); cf. ...