By Chantal N. Guerriero, Esq., and Ty Hyderally, Esq.

The New Jersey Supreme Court recently heard Delanoy v. Township of Ocean to decide whether to uphold the Appellate Division’s decision that a police department’s light duty policy discriminated against its pregnant employees. After the Appellate Division’s decision, the defendant, Township of Ocean, filed a petition for certification to the Supreme Court, and arguments were heard earlier this month.

In the case, Plaintiff Kathleen Delanoy, argued that her employer, the Ocean Township Police Department (the “Township”), and various employees therein, violated the Pregnant Workers Fairness Act (“PWFA”), an amendment to the New Jersey Law Against Discrimination (“LAD”).  After Delanoy found out she was pregnant with her second child, she requested to be transferred to a light duty position per the request of her doctor. Delanoy was then transferred to a non-patrol position, pursuant to the Township’s “Maternity Assignment Standard Operating Procedure” (“Maternity SOP”).

However, the Maternity SOP proved to be inferior to the department’s non-maternity light duty policy in several respects. The Maternity SOP allowed pregnant employees to work light duty only if the employee used up all of her accumulated paid time off, prior to being assigned. In contrast, the Township’s Police Chief had the authority to waive the loss-of-leave-time condition for those employees working non-maternity light duty. Delanoy thus argued that the policy was discriminatory against pregnant workers because it adversely affected only pregnant workers, thereby violating the PWFA’s equal treatment clause. Delanoy further argued that the policy did not constitute a “reasonable accommodation” as required under the statute.

The Appellate Division vacated the lower court’s decision granting summary judgment in favor of the Defendants, and directed the lower court to grant Delanoy’s requests for declaratory judgment and injunctive relief.  In so doing, the Appellate Division agreed with Delanoy that the policy was discriminatory.  The Appellate Division reasoned that, because only non-pregnant employees were eligible for the loss-of-leave-time waiver, the policy violated the PWFA. Additionally, the Appellate Division reasoned that there were genuine issues of material fact surrounding whether the Township’s accommodations were reasonable, thereby precluding dismissal.

During the Supreme Court hearing, the Court also focused on the Township’s argument that, because Delanoy requested not to carry a gun for fear that the lead from the gun would negatively impact her pregnancy, she could not perform the essential functions of her job, and was therefore not entitled to a reasonable accommodation.  In response, Delanoy argued the Township failed to engage in any interactive discussion with Delanoy, as required under the LAD, to determine whether a reasonable accommodation could be reached.  Further, Delanoy argued that if wearing a gun was an essential function of the job, such that no reasonable accommodation could be afforded, then women could not become police officers in the state of New Jersey if they wanted to have children.

To that end, the case was hotly debated, and the Supreme Court will ultimately have the power to determine the outcome. However, given the strong anti-retaliation and anti-discrimination laws in New Jersey, Delanoy’s case occurred in the right state.

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