On March 9, 2021, the New Jersey Supreme Court issued its first published decision addressing the New Jersey Pregnant Workers Fairness Act (PWFA), the amendment to the New Jersey Law Against Discrimination that protects pregnant and breastfeeding employees from workplace discrimination. The Court, in a 7-0 decision in Delanoy v. Township of Ocean, articulated three separate causes of action for pregnant employees in the workplace. The practical implication of this decision means that not only must employers review their written policies, but also undocumented, informal practices that directly and indirectly impact pregnant employees in the workplace.
This case involves light duty policies implemented by the Township of Ocean. The Township maintained one light duty policy for pregnant female police officers (the “Maternity Light Duty Policy”) and a second one for all officers seeking light duty (the “General Light Duty Policy”). Both light duty policies required employees to exhaust their paid time off. The Township used a calculation, based upon the employee’s anticipated return to work date, when applying paid time off. The Maternity Light Duty Policy required an anticipated return to work date within 45 days after the birth of a child, while the General Light Duty Policy contained no time limitations for the anticipated return to work date. Also, while both policies required employees to exhaust all of their paid time off, this requirement could be waived by the Township only for non-pregnant employees. Kathleen Delanoy, a pregnant female police officer, challenged the policy as unlawfully discriminatory towards pregnant employees. The trial court granted summary judgment in favor of the Township on the basis that the Maternity Light Duty Policy did not violate the PWFA’s equal treatment mandate.
Delanoy also asserted claims that the Township failed to accommodate her pregnancy. Specifically, Delanoy informed the Township that she could no longer carry a weapon due to her pregnancy. In response, the Township transferred her to an intake/records opinion. The trial court found for the Township on this claim, based on its defense that accommodating Delanoy’s request not to carry a weapon in her current position would create an undue hardship on business operations.
Appellate Division Decision
The Appellate Division overturned the trial court’s dismissal of Delanoy’s claims. In doing so, the appeals court found that the Maternity Light Duty policy treated pregnant employees less favorably than nonpregnant employees. The appeals court also overturned the dismissal of Delanoy’s failure to accommodate claim, and instead found that a jury should decide whether the requested accommodation would in fact create an undue business hardship. The Township appealed these rulings.
New Jersey Supreme Court Decision
The New Jersey Supreme Court agreed with the appeals court and found that the Maternity Light Duty Policy violated the PWFA. As to the failure to accommodate and undue hardship defense, the Court remanded those issue for further development by the lower court.
Policies That Give Preferential Treatment To Disabled, Non-Pregnant Employees
Turning first to the Maternity Light Duty Policy, the Supreme Court found the Township’s policies effectively treated pregnant employees less favorably than those non-pregnant employees who required light duty. In reaching this determination, the Court found that the PWFA creates two additional categories protected by law: pregnancy and breastfeeding. The Court clarified that these categories are in addition to those under New Jersey’s Law Against Discrimination, a law which prohibits workplace discrimination based upon certain protected traits, like race, religion, sex, sexual orientation, age, and disability, among others.
The PWFA Allows For Three Potential Claims By Pregnant Employees
In deciding this case, the Court further explained that the PWFA provides for three separate causes of action by a pregnant and/or breastfeeding employee for workplace discrimination. These causes of action are for: (1) unequal treatment; (2) failure to accommodate pregnancy and/or breastfeeding needs; (3) and unlawful penalization.
1. Unequal Treatment
The first cause of action for unequal treatment is fairly straight-forward and is demonstrated by the Township’s separate and less favorable light duty policy for pregnant employees. Simply stated, pregnant and breastfeeding employees cannot be treated less favorably than other employees.
2. Failure To Accommodate
The second cause of action, failure to accommodate, is based on the PWFA’s requirement that employers reasonably accommodate the needs of pregnant employees, for instance, by offering bathroom, water, and rest breaks; job restructuring; or temporary transfers to positions with less dangerous/strenuous tasks (among other accommodations). For an employee breastfeeding her child, the PWFA requires accommodations such as lactation breaks. An employer is relieved from these pregnancy and breastfeeding accommodation requirements if it can show that by providing the requested accommodations, the employer would suffer an undue hardship on the business.
In the accommodation setting, the traditional analysis has always included consideration as to whether the employee could perform the essential function of the job, with or without an accommodation. The Court changed the face of the accommodation analysis in this decision by finding that for pregnant employees, the temporary waiver of an essential job function does not automatically equate to an undue hardship. Instead, employers are now tasked with showing “‘the extent to which’ an essential requirement might be waived during the temporary period of the reasonable accommodation.” As the Court explained, “In sum, the PWFA may require, in specific circumstances, that an employer provide a reasonable accommodation that entails temporarily permitting a pregnant employee to transfer to work that omits an essential function of her job.”
In the case at hand, based on this analysis, the Court remanded both the issue of whether carrying a weapon is an essential job function and the issue of undue hardship.
3. Legal Penalization
Finally, the third cause of action for legal penalization deals with the realities for the employee after requesting an accommodation due to pregnancy or breastfeeding needs. The PWFA prohibits an employer for penalizing the employee in connection with the terms and conditions of employment because the employee sought a job accommodation. This unlawful penalization includes creating a hostile work environment, or creating a “harsh” work environment after the employee requests an accommodation. Here, after Delanoy requested an accommodation based upon pregnancy, the Township reassigned her to a different position. The Court found that a jury must decide if the reassignment was a penalty based upon Delanoy’s request for a reassignment.
As this case shows, equal treatment and accommodation of pregnant and breastfeeding employees is on the Court’s agenda. This decision requires employers, as a practical best practice, to review their formal policies on treatment and accommodation of pregnancy, as well as practices by individual managers and supervisors that may deviate from an “official” workplace policy.
For more information regarding this decision and best practices to implement compliance pregnancy accommodation policies in your workplace, please contact Brigette N. Eagan, Counsel in the Firm’s Human Resources Counseling & Compliance Practice Group via email here or 973-533-0777.