By Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.

In the first New Jersey state court published opinion of 2020, the Appellate Division held that a township’s maternity policy unlawfully discriminates against pregnant employees as compared to non-pregnant employees. Delanoy Township v. Ocean, et. al., A-2899-17T4 (N.J. App. Div. Jan. 3, 2020), provides guidance on the requirements of the New Jersey Pregnant Workers Fairness Act, NJ Rev Stat § 10:5-3.1 (2014) (PWFA).

The PWFA amended the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (LAD) on January 17, 2014 to grant greater protections for pregnant women, such as requiring employers to provide reasonable accommodations in the workplace to pregnant employees who request them, as long as doing so does not constitute an undue hardship to the employer. The PWFA also prohibits employers from penalizing female employees because they are pregnant.

The PWFA applies to all employers in New Jersey, except federal employers, regardless of workforce size. The statute requires employers to accommodate female employees who are “affected by pregnancy”, no matter if they are “disabled” and/or whether the accommodations are necessary for the pregnant employees to perform the essential functions of their job. An employee doesn’t need to be “disabled” or unable to perform any aspect of her job to be entitled to an accommodation under the PWFA. A pregnant employee only needs to request an accommodation “for needs related to the pregnancy”, which may include, among others, a modification of primary duties, bathroom breaks, periodic rest, modified work schedule, assistance with manual labor and temporary transfers to less strenuous or hazardous work. Although the PWFA sets a high standard for employers to deny an accommodation, the accommodation must be “reasonable” and “based on the advice of [the employee’s] physician”. Pregnant employees who work for federal employers may seek legal protections under the Pregnancy Discrimination Act (PDA) of 1978 (Pub. L. 95–555) and, if disabled, under the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, (1990), Amended Pub. L. 113-287 (2014). These statutes apply only to employers with 15 or more employees.

In Delanoy, a pregnant police officer informed her supervisors of her pregnancy in 2014 and her doctor’s advice that she be transferred from her patrol duties to a “light duty” assignment in the Ocean Township Police Department under the Township’s Maternity Assignment Standard Operating Procedure (Maternity SOP). Kathleen Delanoy sued for violation of the PWFA because the Maternity SOP treated pregnant officers less favorably than the department’s policy for non-pregnant injured officers, the Light-Duty / Modified Duty Standard Operating Procedure (Light-Duty SOP). While both SOPs required that the employee use up all of his or her accumulated paid leave (e.g. vacation, personal and holiday time) before transferring to the light-duty assignment, the Light-Duty SOP provided the Police Chief the authority to waive the loss-of-leave-time precondition, whereas under the Maternity SOP, pregnant workers were obligated to exhaust all of their paid leave time before being given the maternity assignment, without the opportunity of a waiver.

In addition to the Maternity SOP treating pregnant employees less favorably than non-pregnant employees, Delanoy contended that the requirement of exhausting paid leave failed to reasonably accommodate pregnant workers and penalized women because of their pregnant status.

The trial court granted summary judgment to the Township, finding that the Maternity SOP did not violate equal treatment of pregnant employees under the PWFA. The employer defendants had argued that the “give and take” nature of the Maternity SOP and the Light Duty SOP were intended to save money for taxpayers and that it was fair that officers give up their accumulated time before getting the benefit of light duty or maternity duty, without loss of pay.

On appeal, the three-judge panel of the Appellate Division disagreed, finding that the Maternity SOP “unlawfully discriminates against pregnant employees as compared to nonpregnant employees who can seek and potentially obtain a waiver from the Police Chief. Such nonequal treatment violates the PWFA.” The Appellate Division reversed the summary judgment in favor of the Township and directed the trial court to grant Delanoy’s requests for declaratory and injunctive relief. The Court remanded to the trial court the issues of whether the Township failed to provide Delanoy with reasonable accommodations and whether the Maternity SOP constituted a penalty on pregnant workers for a jury to decide.  A great win for Office Delanoy and for pregnant women.

As this is the first published opinion about the PWFA, it remains to be seen if a petition for certification to the New Jersey Supreme Court will come next. If you have any questions on the Delanoy case or would like more information on this topic, you may contact our office.

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