“NJ Pregnant Workers Fairness Act” Addressed in Court’s Pregnancy Discrimination Decision
May 7, 2021 | Written by: Share|
On March 9, 2021, the New Jersey Supreme Court issued an important employment law decision on pregnancy discrimination in the case of Delanoy v. Township of Ocean, 245 N.J. 384 (2021), which discusses the distinct causes of action that can be brought under the New Jersey Pregnant Workers Fairness Act (“PWFA”).
Plaintiff Kathleen Delanoy had served since 2003 as a police officer with the Township of Ocean. In April 2011, she informed the Chief of Police that she was pregnant and would be unable to perform her typical assignment (her claims ultimately came to include a second pregnancy as well). The Chief of Police initially advised Delanoy that the Township did not have light-duty assignments for pregnant police officers. However, later that year he issued two Standard Operating Procedures, one for Maternity Assignment (for pregnant officers) and one for Light/Modified Duty (for non-pregnant injured officers). The SOPs were substantially similar, with both providing an option for light-duty work but requiring that officers utilize all of their paid leave time as a condition of the light-duty assignment. However, there were two critical differences. Under the Maternity SOP, the projected return date could be “no more than 45 calendar days past the expected due date,” whereas under the Light Duty SOP, the return date was governed by the officer’s doctor’s note. Also, under the Light Duty SOP, the Police Chief had the discretion to waive the exhaustion-of-accumulated-leave condition, and the Maternity SOP did not have an equivalent provision. In her lawsuit, Delanoy asserted that injured male officers had been granted a waiver of the accumulated-leave condition under the Light Duty SOP.
Delanoy brought a pregnancy discrimination claim under the PWFA against her employer. Her claim was dismissed on summary judgment, but the Appellate Division vacated the summary judgment ruling and remanded the matter to the trial court. The Supreme Court affirmed the remand and concurred with the Appellate Division’s “illumination of the PWFA as providing multiple theories on which a claim may be based,” specifically: 1) “unequal” or “unfavorable” treatment of a pregnant or breastfeeding employee, 2) failure to provide a reasonable accommodation to a pregnant or breastfeeding employee (subject to the employer’s claim of undue hardship), and 3) illegal penalization of a pregnant or breastfeeding employee for requesting an accommodation.
The Court noted that the plaintiff’s complaint “did not specifically identify those causes of action as distinctly as they are now being argued,” but moving forward, “we instruct plaintiffs – and their attorneys – bringing claims under subsection (s) of the PWFA to identify the theories on which their causes of action rely.” The Supreme Court then examined all three identified causes of action and their application in the case:
- Unequal treatment: the Court found that “it is apparent that the Maternity SOP applied to Delanoy was facially invalid because it plainly treated pregnant employees differently and less favorably than non-pregnant employees who were similar in their ability or inability to work.” The Light Duty SOP had a waiver for the accumulated-leave provision and the Maternity SOP did not. Thus, on its face, the Maternity SOP constituted a per se violation of the PWFA’s prohibition of unfavorable treatment of pregnant employees. The Court affirmed reversal of summary judgment but ordered remand only on causation and damages since liability was established.
- Reasonable accommodation: the Court agreed with the Appellate Division’s finding of statutory authority for a reasonable-accommodation claim under the PWFA, but viewed the claim in a “conceptually different manner.” The Court felt that the Appellate Division mistakenly viewed subsection (s) as being “equivalent in approach to all other disability accommodation claims.” However, as amended by the PWFA, the LAD now specifically addresses pregnancy accommodation and so courts must “hew closely to the precise, procedurally clear, and detailed protections that the Legislature has provided to pregnant and breastfeeding women.” Thus, the Court held that “a claim for failure to accommodate a pregnant or breastfeeding employee under the PWFA requires the plaintiff to prove three elements: 1) the plaintiff employee must be pregnant or breastfeeding; 2) the plaintiff employee must request reasonable accommodation, as prescribed by subsection (s), so that the employer knows or should know of the plaintiff's need for an accommodation; and 3) the employer must fail to provide a reasonable accommodation. It is the employer's burden to prove, as an affirmative defense, that providing a reasonable accommodation causes an undue hardship.” In this case, the Court found that the plaintiff met the statutory criteria for a failure to accommodate her claim under subsection (s) and remanded the case to the trial court to determine whether the Township could prove undue hardship.
- Penalizing a pregnant employee who seeks accommodation: the Court agreed with the Appellate Division that “penalization” is plainly identified as an independent cause of action under subsection (s). The Court affirmed remand for a jury to decide whether plaintiff’s treatment was so harsh as to constitute a penalty.