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Tuesday, January 31, 2017

Does My Employer Have to Accommodate My Surrogate Pregnancy? Surrogate Birth Leads to Discrimination Suit

A recent case is testing the limits of pregnancy and sex discrimination laws as a woman who opted to use a surrogate to give birth to twins has filed a discrimination suit against her employer for not allowing her to take time off under its paid maternity leave policy and discrimination based on sex, disability and pregnancy. Under the employer’s policy, women who give birth or adopt children are offered six to eight weeks of paid leave. However, the company required her to use vacation and sick days when her children were born. The Plaintiff in this matter originally filed the suit in U.S. District Court in Massachusetts in September of 2015, accusing the employer of sex, pregnancy and disability discrimination and violating the Family Medical Leave Act. 

The overarching issue is whether mothers who use a surrogate are entitled to the same benefits as an actual or adopting mother. Here, the Plaintiff was diagnosed in 2001 with cervical cancer, which resulted in the removal of her uterus as part of her treatment. Unable to become pregnant as a result, years later she had her own eggs fertilized by a sperm donor. The woman suffers from a pregnancy-related disability  because she is unable to become pregnant. Due to the willingness of a woman to carry the fertilized eggs, she subsequently had the fertilized eggs implanted into gestational surrogate who became pregnant with twins. 

The Plaintiff alleges that when she originally told her employer that she was expecting twins and wanted to go on paid maternity leave, her employer initially congratulated her. However, she alleges that the employer changed its attitude toward her when they found out the twins were being carried by a surrogate and informed her that she would not be eligible for paid maternity leave. They further told her that she should apply for unpaid leave through the Family Medical Leave Act (FMLA) using her vacation and sick days. 

The story does not end there, however. The surrogate went into pre-term labor three months early and the twins were born via caesarian section. The first twin died the next day and the second remained hospitalized in critical condition and died about six months later due to a rare form of cancer.

The Plaintiff alleges that the employer made her use her accrued vacation and personal time as part of her leave rather than paid maternity leave that they offered to adoptive parents. They further told her that she should she apply for unpaid leave as she cared for the second twin who was critically ill. The employer then demoted her while on leave while she was suffering from a grief-related mental disability resulting from the death of the first twin while contemporaneously  dealing with the life-threatening illness of the second twin. Shortly after the death of the second twin, she alleges she applied for disability, and they terminated her as a result. 

If New Jersey State law were to be applied in this matter under the New Jersey Law Against Discrimination, there are many causes of action: sex discrimination, pregnancy discrimination, disability discrimination and unlawful retaliation under the NJLAD.

In spite of the protections provided by state and federal law, women are often treated unfairly because of pregnancy, childbirth or a related medical condition.

In particular, the federal Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy regarding any aspect of employment. The PDA prohibits employers from discriminating against pregnant women regarding any employment decision, including hiring, firing, compensation, job assignments, and any other terms and conditions of employment. Under this law, employers must treat women who are temporarily unable to perform their jobs the same as other temporarily disabled workers.

In addition, women in New Jersey who are pregnant, have given birth or suffer from a pregnancy related medical condition are protected by the Pregnant Workers Fairness Act (PWFA) which amended the New Jersey Law Against Discrimination. These amendments go a step further to protect women who are pregnant, have given birth or suffer a related medical condition. In short, employers who know or should know a worker is pregnant can be held liable for treating that individual less favorably than other workers. Lastly, women who suffer a medical condition related to their pregnancy, or are temporarily partially disabled, may also be protected by the Americans with Disabilities Act. The Federal Medical Leave Act (FMLA) also requires employers of a certain size to give time off for pregnancy related conditions to covered employees who have worked a certain number of time to qualify under the FMLA.

In New Jersey, pregnancy discrimination Plaintiffs do not have to exhaust tedious administrative ADA filings before they can file a lawsuit, and they do not have to file administratively and exhaust PDA remedies before they file in court. In New Jersey, pregnancy discrimination plaintiffs can file lawsuits sooner and directly in State Superior Court, under the New Jersey Law Against Discrimination. Finally, The New Jersey Law Against Discrimination, including the amendments mandated by the PWFA applies to all New Jersey employers, regardless of their size, unlike the federal statutes governing pregnancy discrimination. 

What You Can Do

If you believe your employer is discriminating against you because of your pregnancy or related condition, be it a natural birth, or adoption of a child, or because you are having an atypical birth process, such as a surrogate, it is important for you to consult with an experienced employment law attorney. I am an aggressive and compassionate employment law attorney who is experienced in representing private and public employees with pregnancy discrimination claims and have successfully represented clients with retaliation and pregnancy- related claims. If you are being subjected to such unlawful workplace discrimination or retaliation, please contact Hope A. Lang, Attorney at Law today for a free consultation. 

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.


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