Article by Ralph R. Smith, III, Esq.

In a recent New Jersey Appellate Division case, Delanoy v. Township of Ocean, No. A-2899-17T4 (App. Div. January 3, 2020), our state appellate court issued a significant new decision that explains what an employer’s legal obligations are to eliminate discrimination against (and provide reasonable accommodations to) its pregnant employees. This is the first published court opinion addressing these important legal issues for employers.

Back in 2013, the New Jersey Legislature amended the New Jersey Law Against Discrimination (“LAD”) through passage of the New Jersey Pregnant Workers Fairness Act (“PWFA”).  The PWFA revised the LAD to expressly prohibit pregnancy-based discrimination in employment while imposing other legal requirements upon employers regarding how pregnant employees could be treated in the workplace. Among those other important legal requirements, the PWFA obligates employers, subject to an undue hardship exception, to afford reasonable accommodations in the workplace to pregnant women, when requested, and also to not penalize women due to their status of being pregnant.

The Plaintiff in Delanoy was employed as a police officer. When she became pregnant with her second child, she informed her supervisor that at the direction of her doctor she needed to be taken off her patrol duties and receive some sort of light duty position during the period of her pregnancy. As a result of her request, the employee was placed into a light duty non-patrol position pursuant to a “Maternity Assignment Standard Operating Procedure” that was a previously adopted policy by the employer. That policy enabled pregnant workers to work a different maternity job assignment, but in exchange for the modified assignment, the pregnant officer had to use all of her accrued paid leave time off (e.g. vacation, personal and holiday time) before going on that different work assignment. The police department employer also had a separate light duty assignment policy for non-pregnant injured officers who also needed a different temporary job assignment. Unlike the maternity reassignment policy, this light duty policy gave the police chief the authority to waive the condition of utilizing accrued leave time as a prerequisite for receiving the light duty assignment.

Plaintiff filed suit against her employer claiming that the maternity reassignment policy discriminated against pregnant employees since it was less favorable than the separate light duty non-pregnancy policy, which made provision for the waiver of the required exhaustion of paid leave time. Because of this disparity, the Plaintiff argued that the policy on its face discriminated against pregnant employees in violation of the PWFA because such employees were penalized in requesting an accommodation by losing their paid leave time as a condition for receiving the requested accommodation.  Reversing the trial court’s determination of no discrimination, the Appellate Division agreed with the Plaintiff that the maternity assignment policy discriminated against pregnant workers because unlike non-pregnant workers who could seek an exception to the paid leave use requirement under the light duty policy, the maternity reassignment policy allowed for no such exemption. In light of this finding, the court declared the policy to be illegal on its face and enjoined its further enforcement moving forward by the employer.

In light of the court’s ruling in Delanoy, employers need to familiarize themselves with the unique obligations owed to pregnant workers who may need a workplace accommodation under the PWFA.  Not only does that law prohibit discrimination against pregnant workers, but it also affords those employees with the opportunity to receive an accommodation because of their physical condition.

Hence, to assist employers in understanding that accommodation duty, the PWFA cites various examples of possible required accommodations, which could include “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedule, and temporary transfers to less strenuous or hazardous work….”  Of course, this accommodation duty is subject to application of an undue hardship exception, and the law likewise lays out various considerations for making that determination as well (i.e. size of employer, size of work facility, size of company budget, etc.).

In sum, the PWFA significantly changed the legal landscape for employers as it relates to its pregnant workforce, so employers must be ever cognizant of the law’s requirements and ensure that workplace policies do not treat non-pregnant workers better than pregnant workers, or punish such employees due to their condition, especially those policies and practices that impact upon available accommodations that an employer may be willing to make for its general workforce.

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.