Back on January 13, 2020 this blog site discussed a New Jersey Appellate Division decision interpreting the New Jersey Pregnant Workers’ Fairness Act (PWFA) which amended existing provisions of the New Jersey Law Against Discrimination (LAD) at N.J.S.A., 10:5-12(s) thereby requiring employers to provide pregnant (and breast feeding) workers with reasonable accommodations – such as temporary transfers to less strenuous or hazardous work – to allow them to continue working. Delanoy v. Twp. of Ocean, 462 N.J. Super. 78 (App. Div. 2020). This decision was appealed by the employer to the New Jersey Supreme Court who this week issued an opinion affirming the Appellate Division while making clear that three distinct causes of action are provided under N.J.S.A., 10:5-12(s) to aggrieved pregnant (and breast feeding) employees: (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, separately explained in the subsection); and (3) illegal penalization of a pregnant or breastfeeding employee for requesting an accommodation. Delanoy v. Twp. of Ocean, 2021 N.J. LEXIS 173 at *16 (decided March 9, 2021).
In Delanoy, plaintiff, a pregnant police officer, notified her employer, the Ocean Township Police Department (OTPD) of her doctor’s order prohibiting her from performing certain essential patrol officer functions (e.g., carrying a gun) during the later stages of her pregnancy, and in turn recommended she be removed from patrol duty and transferred to a “light-duty” position during such time. The OTPD assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’) allowing pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time) before going on that different assignment.” The OTPD also maintained an almost identical “Light-Duty SOP” for nonpregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. When the OTPD refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The OTPD argued that plaintiff’s transfer to a fundamentally different assignment did not constitute an accommodation as defined by the LAD because plaintiff was not entitled to a reasonable accommodation since none existed that would allow her to continue performing the essential functions of a patrol officer while pregnant. The New Jersey Appellate Division disagreed.
In an opinion authored by Justice LaVecchia, the New Jersey Supreme Court in affirming the Appellate Division below declared the OTPD’s Maternity SOP facially invalid because it plainly treated pregnant employees differently and less favorably than non-pregnant employees who were similar in their ability or inability to work. The Light Duty SOP provided for a waiver of the accumulated-leave condition, and the Maternity SOP did not. Therefore, on its face, the Maternity SOP constituted a per se violation of the PWFA’s prohibition of unfavorable treatment of pregnant employees. The Court accordingly affirmed the Appellate Division’s reversal of the trial court’s denial of partial summary judgment to Delanoy on her facial challenge. The Court remanded for a jury trial only on the issues of causation and damages.
The Court also agreed the PWFA includes a reasonable-accommodation claim focusing on the statutory direction in N.J.S.A., 10:5-12(s), which specifically addresses pregnancy accommodation. Subsection (s) creates a statutory right to a reasonable accommodation for currently serving employees who become pregnant and request an accommodation based on a physician’s advice; it also permits employers to claim an undue hardship exemption from their statutory obligation to accommodate pregnant employees in the workplace, stating that reasonable accommodation is statutorily required “unless the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer.” 2021 N.J. LEXIS 173 at *15. Accordingly, the statute establishes undue hardship as an affirmative defense to a failure-to-accommodate claim to which the employer carries the burden of proof. Simply put, it is not the employee’s burden to prove the absence of an undue hardship as part of a prima facie case.
Finally, the Court concluded that the final paragraph of subsection (s) identifies factors to consider when determining whether a proposed accommodation would constitute an undue hardship for the employer, including “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.” 2021 N.J. LEXIS 173 at *27-*30. A temporary waiver of an essential function does not automatically rise to the level of “undue hardship,” but rather is a factor to consider in the totality of the evidence advanced to demonstrate that the accommodation would cause the employer’s business operations an undue hardship. If the employer can produce proofs raising a genuine question about the undue hardship of such a temporary accommodation, then the issue is presented to the jury for resolution. Id. at *8
If you believe you have been unfairly treated by an employer because of pregnancy (or breastfeeding), call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help in assessing whether you have an actionable claim against your employer. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.