In Delanoy v. Township of Ocean, et al., A-2899-17T4 (N.J. App. Div. Jan. 3, 2020), the New Jersey Appellate Division issued New Jersey’s first published opinion concerning the scope of the New Jersey Pregnant Workers Fairness Act (“PWFA”). The PWFA amended New Jersey’s Law Against Discrimination in January of 2014, to expressly prohibit pregnancy-based discrimination in employment and other contexts. The statute obligates employers to provide reasonable accommodations in the workplace to pregnant women upon their request, unless providing the accommodation would constitute an undue hardship. The law also prohibits penalizing women because of their pregnancy status.
The claim at issue arose from the employment of Kathleen J. Delanoy with the Township of Ocean’s police department. Plaintiff complained, principally, that the police department had discriminated against her by adopting a “Maternity Assignment Standard Operating Procedure,” or “Maternity SOP,” that treated pregnant officers less favorably than the department’s policy for non-pregnant injured officers. In particular, the Maternity SOP allowed pregnant officers to be provided a maternity assignment, but on the condition that the officer use all of her accumulated paid leave time (e.g. vacation, personal, and holiday time) prior to being given the maternity assignment. The department’s policy for light-duty assignments for non-pregnant injured workers had a similar requirement – but provided the Police Chief the authority to waive the loss-of-leave-time precondition.
In addition to the Maternity SOP allegedly providing disparate treatment to pregnant women, as compared to other employees seeking light duty, Plaintiff contended that the requirement of depleting accumulated leave time was a failure to reasonably accommodate pregnant workers in express violation of the PWFA.
The trial court granted summary judgment to the employer defendants, finding that the maternity policy did not violate the “equal treatment” mandate of the PWFA. The trial court did not, however, discuss the issue of the PWFA’s reasonable accommodation requirement, the defense of an undue hardship, or the claim of penalizing pregnant women due to their pregnancy status.
On appeal, the three judge panel of the Appellate Division disagreed, and held that the Maternity SOP, as written, unlawfully discriminates against pregnant employees as compared to non-pregnant employees, and as such, violates the PWFA. The trial court was directed to grant the requests of plaintiff for injunctive and declaratory relief.
Defendants had argued that the Maternity SOP was fair, because the Township’s creation of the light duty and maternity positions for pregnant officers was contingent upon some concession from its officers – in this case, accumulated time. According to the defendants, the “give and take” of the Maternity SOP and the comparable light-duty policy was intended to save money for taxpayers. These assignments essentially created temporary clerical positions for officers, but paid them at their ordinary officer salaries, rather than at the reduced salary of a file clerk. Thus, Defendants contended that it was only fair that the officers give up their accumulated time before getting the benefit of the light-duty, or maternity duty, posting.
The Appellate Division found that the Maternity SOP was less favorable than the light-duty policy in a critical respect, regarding the ability of the Police Chief to waive the accumulated-leave-loss requirement for light-duty assignments. This rendered it facially discriminatory. However, the court noted that it was less clear whether the facial difference between the two policies proximately caused the plaintiff any damages.
Moreover, the court found that the question of whether the Township had failed to provide reasonable accommodations presented a question of fact for the jury. “Here, jurors should evaluate whether the Department’s loss-of-leave-time policy is a reasonable and fair condition of the pregnant worker receiving a less strenuous temporary maternity assignment while remaining on the Department’s payroll.” The court deferred answering the question of whether the policy at issue constituted a penalty on pregnant workers, but resolved that in this instance, it would be a jury question.
This decision provides significant guidance to employers and employment litigators in regards to the scopeof the PWFA. For more information on this topic, please contact MKC&I’s Tom Emala at (973) 822-1110 or at firstname.lastname@example.org.