By John V. Berry, Esq., www.berrylegal.com
Police departments, more than ever, are facing the issue of how to properly handle cases where female police officers become pregnant and need adjustments to their work schedule and/or duties. The 2017 Alicea case below is only the latest version of a department or municipality that seems to have gotten it wrong. Departments need to definitely re-evaluate their own policies and consider whether or not their policies meet their legal obligations. Otherwise, these types of issues can have significant and costly ramifications to a police department and morale implications for sworn officers.
Background
The Alicea case involved a female police officer, Sarah Alicea, who filed an EEOC charge against the Town of Cromwell, Connecticut for pregnancy discrimination. The complaint was filed with the Equal Employment Opportunity Commission by the American Civil Liberties Union. Prior to these issues developing, the veteran officer had worked for 4 years as a patrol officer for the Town of Cromwell. When the officer notified the Cromwell police chief and manager of her pregnancy and the physical restrictions placed on her by her physician, the town refused to provide her with light duty and instead forced the officer to go out on leave without pay. It is alleged that her supervisor, when confronted with the issue, told her that they did not have light duty and she was required to go on family medical leave.
Having run out of FMLA leave, she was not getting paid and required to pay for her employer's portion for her health benefits, lost contribution to her pension and not accumulating leave. To compound matters, the department apparently had no written policies concerning accommodations for disabilities under the Americans with Disabilities Act (ADA) or for accommodations for pregnant officers under the PDA.
Subsequently, the officer sought counsel and filed a discrimination charge against the Town and Department.
Pregnancy Discrimination Statutes
Federal pregnancy discrimination statutes require that police employers and other governmental agencies treat pregnant police officers the same as other officers who have a similar inability to work. The Pregnancy Discrimination Act of 1978, amended the Civil Rights Act, and provides as follows:
"That section 701 of the Civil Rights Act of 1964 is amended by adding at the end thereof the following new subsection:
"(k) The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.".
Sec. 2. (a) Except as provided in subsection (b), the amendment made by this Act shall be effective on the date of enactment.
(b) The provisions of the amendment made by the first section of this Act shall not apply to any fringe benefit program or fund, or insurance program which is in effect on the date of enactment of this Act until 180 days after enactment of this Act.
Sec. 3. Until the expiration of a period of one year from the date of enactment of this Act or, if there is an applicable collective- bargaining agreement in effect on the date of enactment of this Act, until the termination of that agreement, no person who, on the date of enactment of this Act is providing either by direct payment or by making contributions to a fringe benefit fund or insurance program, benefits in violation with this Act shall, in order to come into compliance with this Act, reduce the benefits or the compensation provided any employee on the date of enactment of this Act, either directly or by failing to provide sufficient contributions to a fringe benefit fund or insurance program: Provided, That where the costs of such benefits on the date of enactment of this Act are apportioned between employers and employees, the payments or contributions required to comply with this Act may be made by employers and employees in the same proportion: And provided further, That nothing in this section shall prevent the readjustment of benefits or compensation for reasons unrelated to compliance with this Act."
The PDA applies to public sector employers, like in the Alicea case. The complaint filed in this case can be found here. Alicea EEOC Charge
These types of cases are becoming more frequent. Late last year 2 Kentucky female police officers, who had become pregnant and treated similarly to Alicea brought forward similar cases are were resolved through monetary settlements and agreed to changes in police department policies. Kentucky Officer's Prevail. In fact, just a few weeks ago a female police officer in New Jersey, who had her hours cut because of her pregnancy was successful in obtaining a settlement in her case. This issue is likely to be the subject of a number of lawsuits and EEOC claims as departments go through the process of recognizing their legal obligations under the PDA. Some helpful information was provided regarding these issues by the Women in Federal Law Enforcement, in a memorandum. Police departments need to get ahead of this issue to the extent that they do not have appropriate policies for dealing with pregnant officers.
Conclusion
It is important for a law enforcement officer to understand the legal issues they face if issues arise during their pregnancy and department policy. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here and our Facebook page can be found here.