Presented by the Employment Law Practice Group

New Jersey Supreme Court Establishes Specifics for Employers When It Comes to Protections for Pregnant Employees

Delanoy v. Township of Ocean (decided March 9, 2021) marks the New Jersey Supreme Court’s first interpretation of the Pregnant Workers Fairness Act (PWFA), N.J.S.A. 10:5-12(s). The PWFA, passed in 2014, amended the New Jersey Law Against Discrimination to add specific protections for “pregnant or breastfeeding” employees. Pursuant to the Act, employers in New Jersey are prohibited from treating pregnant or breastfeeding employees in a manner less favorable than other employees who are similar in their ability or inability to work.

Delanoy involved a pregnant police officer who challenged the light-duty Standard Operating Procedures (SOPs) of her employer. The “maternity SOP” applied to pregnant workers, and the employer’s “light-duty SOP” applied to non-pregnant workers. Both SOPS required employees to obtain a physician’s note recommending a light-duty assignment and required employees to exhaust all accumulated leave. However, the light-duty SOP provided a waiver of the accumulated leave requirement, whereas the maternity SOP did not. Additionally, the maternity SOP required a projected return date “no more than 45 calendar days past the expected due date,” whereas the light-duty SOP permitted the employee’s physician to determine the projected return date. As part of her light-duty assignments, the plaintiff was assigned to “walk-in” duty and claimed she was treated detrimentally following her request for an accommodation. She thereafter filed suit, challenging her employer’s SOPs under the PWFA.

The New Jersey Supreme Court affirmed the Appellate Division’s reversal of summary judgment in favor of the employer and confirmed that the PWFA creates three distinct theories of liability: (1) unequal or unfavorable treatment; (2) failure to accommodate; and (3) unlawful penalization. The court determined the maternity SOP amounted to a per se violation of the unfavorable treatment theory of the PWFA because it “treated pregnant employees less favorably than non-pregnant employees who were similar in their ability or inability to work.” Further, the court determined that the plaintiff met the statutory criteria for a failure-to-accommodate claim and remanded the case to the trial court to determine whether the employer can establish “undue hardship,” which is its burden to prove. Interestingly, the court recognized that an employee’s temporary inability to perform an essential job function is “one of several factors to be considered” and “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.” Finally, the court also recognized an “unlawful penalization” theory under the PWFA, which prohibits “employer-imposed conditions on accommodations that are especially harsh” or retaliatory.

This case is important to note because it clearly identifies the theories under which a claim can be brought under the PWFA. Employers should be be alert to PWFA claims which fail to assert any of the required theories. With respect to reasonable accommodation claims, it is imperative that defense counsel assert any undue hardship arguments as part of an affirmative defense to matters brought under the PWFA.



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