On appeal from Division on Civil Rights, Department of Law and Public Safety.
Lora, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[158 NJSuper Page 353] 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*fn1 and N.J.S.A. 10:5-12(a),*fn2
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 ...