Pregnant Employees are Entitled to Reasonable Accommodations

Enacted in 2014, the New Jersey Pregnant Workers’ Fairness Act, PWFA, protects pregnant and breastfeeding women in the workplace. While New Jersey’s Law Against Discrimination, LAD, includes pregnant and breastfeeding women, under subsection NJSA 10:5-12, the statute elaborated on the employer obligations to a pregnant or breastfeeding employees, including the requirement that the employer offer reasonable accommodations such as temporary transfers to less strenuous or hazardous work. 

In the case Kathleen Delanoy v. Township of Ocean, A-68-19, the New Jersey Supreme Court evaluated the PWFA and determined that NJSA 10:5-12 created three causes of action for a pregnant and breastfeeding employee. These causes of action are: (1) unequal or unfavorable treatment of pregnant or breastfeeding employees; (2) failure to provide reasonable accommodations to pregnant or breastfeeding employees and (3) illegal penalization of pregnant or breastfeeding employees for requesting an accommodation.  

Since 2003, Kathleen Delanoy was a police officer for the Township of Ocean. In April 2011, Delanoy informed the Chief of Police that she was pregnant and would be unable to perform her usual assignment.  

Initially, the Chief advised Delanoy that the Township of Ocean had light-duty assignments for pregnant officers; however, later he issued two Standard Operating Procedures, SOP, one for maternity leave and one for light duty. The Maternity SOP applied to pregnant officers whereas the Light Duty SOP applied to injured officers.  

The Maternity SOP allowed pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time before going on that different assignment. The Department also maintained an almost identical Light-Duty SOP for non-pregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. 

In this matter, when the Department refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The Township eventually filed a summary judgment motion and the Trial Court held that the Maternity SOP did not violate PWFA’s “equal treatment” mandate.  

Delanoy appealed. The Appellate Court reversed the Trial Court’s decision holding that the Maternity SOP was invalid because it treated pregnant employees unfavorable as compared to the injured employee using the Light Duty SOP.  The Appellate Court held that the jury had to decide the reasonableness of the SOPs loss of accumulated leave time. Furthermore, the jury had to evaluate the employer’s claims of undue hardship to accommodate Delanoy as a pregnant police officer. 

The New Jersey Supreme Court concurred that plaintiff had three distinct causes of action under PWFA: (1) unequal or unfavorable treatment; (2) failure to accommodate; and (3) unlawful penalization. The Court discussed each cause of action in this decision.

Agreeing with the Appellate Court, the Supreme Court found that, on its face, the Maternity SOP treated the pregnant employee different than the non-pregnant employee because the Light Duty SOP allowed for a waiver of the loss of accumulated leave time. The Supreme Court remanded the unfavorable treatment issue to the jury and requested that the jury decide the damages as to the loss of accumulated days.  

Moreover, the Supreme Court found that the PWFA also required reasonable accommodations for a pregnant employee. The Court held that PWFA required reasonable accommodations to those who were already employees and became pregnant. However, the Court acknowledged that if the employer could produce proofs of a genuine hardship, the issue should be presented to a jury.  

As to unlawful penalization, the Supreme Court confirmed that the PWFA prohibits penalizing a pregnant employee who seeks an accommodation. Specifically, the Court held that the employer is not allowed to impose conditions on the accommodations that are considered especially harsh. 

In this matter, the Court found that the loss of accumulated leave to secure a light duty assignment was an unreasonably harsh condition.  

In sum, the Supreme Court held that the PWFA expanded LAD to protect pregnant and breastfeeding employees and provided these employees with three specific causes of action. This clarification enables both employees and employers to understand the rights afforded by the PWFA, including the right to obtain a transfer to a different assignment, temporarily.