In the matter of Delanoy v. Township of Ocean, (A-16-19, decided Mar. 9, 2021), New Jersey’s Supreme Court affirmed the Appellate Division’s reinstatement of a plaintiff’s lawsuit, filed under the New Jersey Pregnant Workers Fairness Act (the “PWFA”).
The PWFA amended portions of New Jersey’s Law Against Discrimination (“LAD”), identifying “pregnancy or breastfeeding” as protected classifications within the statutory framework, and added an entirely new section to the law delineating an employer’s obligations to pregnant or breastfeeding employees. More specifically, the PWFA provides that it is unlawful to treat a woman employee that the employer knows, or should know, is affected by pregnancy or breastfeeding “in a manner less favorable than the treatment of other persons not affected by pregnancy or breastfeeding but similar in their ability or inability to work.” Pregnant workers must be provided reasonable accommodations to continue to perform their job functions. Examples in the statute include bathroom breaks, periodic rest, assistance with manual labor, and more. It is further unlawful for employers to penalize employees for requesting the accommodations required under the law.
In the Appellate Division’s underlying decision, the court identified three distinct statutory causes of action under the PWFA: 1) “unequal” or “unfavorable” treatment of a pregnant or breastfeeding employee; 2) failure to provide a reasonable accommodation to a pregnant or breastfeeding employee, subject to the employer’s claim of undue hardship; and 3) illegal penalization of a pregnant or breastfeeding employee for requesting an accommodation. The Supreme Court accepted these identified causes of action.
Plaintiff in this action had served since 2003 as a police officer in the Township of Ocean. In the force of over fifty officers, she was one of three women. In April 2011, Delanoy informed the chief of police at the time that she was pregnant, and would be unable to perform her typical assignment. The chief advised Plaintiff that the Township did not have a light-duty assignment for pregnant officers, but later that year, issued two Standard Operating Procedures (SOPs): one for Maternity Assignment, and one for Light/Modified Duty. The SOPs were substantially similar. The Maternity SOP applied to pregnant officers, and the Light Duty SOP applied to non-pregnant injured officers. Both SOPs required a doctor’s note recommending light duty, and both required that officers use all of their accumulated paid leave time as a condition of the light-duty assignment. The SOPs were distinct in two significant ways. First, under the Maternity SOP, the projected return date had to be “no more than 45 calendar days past the expected due date.” Under the Light Duty SOP, the doctor’s note was required to include the projected date for the officer’s return to fully duty, which would then control. The police chief also had discretion to waive the exhaustion-of-accumulated leave condition for the Light Duty SOP, but not for the Maternity SOP.
Delanoy filed a lawsuit in January of 2013, asserting claims under the Law Against Discrimination, Title VII of the Civil Rights Act, and the Americans With Disabilities Act. That action was removed to federal court and resolved in October of 2015. However, while the suit was pending, Delanoy became pregnant again in 2014, with an expected due date of March 17, 2015. Anticipating application of the then-existing Maternity SOP, Delanoy filed the second lawsuit.
In September of 2014, consistent with the practice in place under the Maternity SOP, Delanoy began a light-duty assignment, in which she served until she reached the date on which the Township required her to use her accumulated leave time. While on that light-duty assignment, she informed her supervisors that her pregnancy prevented her from carrying a gun or defending herself on patrol, and accordingly she was assigned to handle records and work as a “walk-in” officer, fielding complaints from the public.
Delanoy alleged that the two different SOPs violated the LAD as amended by the PWFA. The trial court ultimately dismissed Delanoy’s suit, noting that the Maternity SOP as applied to Delanoy did not violate the PWFA’s “equal treatment” mandate. The Appellate Division reversed, holding that under the PWFA, the Maternity SOP was facially invalid because it treated pregnant employees unfavorably compared to non-pregnant employees subject to the Light Duty SOP. The Appellate Division also found that there were genuine issues of fact for a duty to resolve, concerning the reasonableness of the SOP’s loss-of-leave time condition and whether that condition comprised an impermissible penalty.
Upon certification, the Court noted that moving forward, plaintiffs must identify which legal theory they are advancing in their suit – unequal or unfavorable treatment; failure to accommodate; or unlawful penalization. The Court distinguished the concept of a “reasonable-accommodation” claim from the Appellate Division’s decision, however, which had derived the claim from case law governing failure to accommodate a disability under the LAD. Instead, the Court determined that subsection (s) of the LAD – the new section added entirely by the PWFA – provides employers the right to demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer. The factors in considering this are also statutory, and include “the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.”
The Court found that an employee’s temporary inability to perform an essential function of her job is merely one factor among others to assess. The Court noted that in order to prove a failure to accommodate claim under the PWFA, plaintiffs must show three things. First, that the plaintiff employee is pregnant or breastfeeding; second, that the plaintiff employeemade a request for a reasonable accommodation, so that the employer knew or should have known of the plaintiff’s need for an accommodation; and third, that the employerfailed to provide such accommodation. The employer has the burden to prove, as an affirmative defense, that providing a reasonable accommodation causes an undue hardship. The defendant must therefore provide proof that an employee cannot fulfillan essential function of her employment and, if so, that her continued employment with the accommodation is an undue hardship for the employer. If satisfied, the issue becomes a factual determination for the jury.
This decision upholds and clarifies the landscape for pregnancy discrimination claims in New Jersey. For more information on this topic, please contact the author, Tom Emala.