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

Thanks to the hard work of employment rights advocates and feminist organizations, pregnant women enjoy many more legal protections in the workplace than they did in the past. Unfortunately, pregnancy discrimination still exists and it is important to know your rights if you are pregnant and working.

The federal Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., (“PDA”), prohibits discrimination based on pregnancy regarding all aspects of employment, such as hiring, firing, rate of pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and others. It covers employers with 15 or more employees and requires that a claimant file a complaint with the federal Equal Employment Opportunity Commission (“EEOC”) before bringing an action in court.

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”), requires employers to provide reasonable accommodations for pregnancy, childbirth, medical conditions related to pregnancy and childbirth, and breastfeeding to allow women to continue working while maintaining a healthy pregnancy or returning to work after giving birth.  If an employee is pregnant, the employer must grant a reasonable accommodation recommended by the employee’s doctor, which may include things such as bathroom breaks, water breaks, rest breaks, assistance with manual labor, job restructuring, flexible work schedules, and a temporary transfer to less strenuous or hazardous work.  An accommodation may not be granted in cases where an employer can prove that doing so would be an undue hardship on its business operations.

If you are breastfeeding, your employer must give you reasonable break time every day, and an adequate private place in which to express breast milk (which a toilet stall is not!), again, unless your employer can show that providing a private location to pump breast milk would be an undue hardship on its operations. What factors are considered when determining whether an accommodation is an undue hardship?  These may include how big your employer’s business is related to how many employees it has, what facilities are available, budgetary factors, number of bathrooms, the physical layout of the operations, etc.  Other considerations are the type and cost of the accommodation needed and whether the accommodation would involve waiving an essential requirement of your job. It is important that you know your employer may not punish you or retaliate against you for requesting or using an accommodation for pregnancy or breastfeeding.

Earlier this year, we wrote about a case that was a big win for pregnant workers. The Appellate Division held that a township’s maternity policy unlawfully discriminated 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 LAD on January 17, 2014 to grant greater protections for pregnant women. 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 does not 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 PDA and, if disabled, under the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, (1990), Amended Pub. L. 113-287 (2014) (“ADA”). These statutes apply only to employers with 15 or more employees.

In Delanoy, a pregnant police officer requested 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).  After Delanoy lost in the trial court, the three-judge panel of the Appellate Division found in her favor, deciding that that the Maternity SOP “unlawfully discriminates against pregnant employees as compared to nonpregnant employees …”  It was a great win for Officer Delanoy and pregnant workers in New Jersey.  If you would like to read more about the case, follow this link: https://www.employmentlit.com/2020/01/29/a-great-win-for-pregnant-workers-in-new-jersey/ .

In addition, the New Jersey Family Leave Act, N.J.S.A. 10:5-1 et seq. (NJFLA) and the federal Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”) also require mandatory protected leave right for the birth, adoption or care of a child.

If you have any questions on the Delanoy case or would like more information on your rights as a pregnant employee, you may contact our office.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.