Last month, the New Jersey Supreme Court addressed the New Jersey Pregnant Workers Fairness Act (“PWFA”) for the first time. The PWFA is an amendment to the New Jersey Law Against Discrimination (“LAD”) that prohibits pregnancy discrimination.
Kathleen Delanoy is a police officer. She filed a lawsuit in which she alleged her employer, the Township of Ocean, discriminated against her because she was pregnant. However, the trial court dismissed her case on a motion for summary judgment.
As discussed in my previous article, Appellate Court Recognizes Employers Must Accommodate Pregnancy, the Appellate Division subsequently reversed that ruling. Ocean Township asked the New Jersey Supreme Court to review that decision.
In Delanoy v. Township of Ocean, the New Jersey Supreme Court upheld the Appellate Division’s ruling that Officer Delanoy should be permitted to proceed with her case. In doing so, it explained that there are three different types of claims an employee can bring under the PWFA:
- Unequal or Unfavorable Treatment Due to Pregnancy or Breastfeeding
The first type of claim under the PWFA occurs when an employer treats a woman worse because she is pregnant or breastfeeding. For example, it can include firing, failing to hire, demoting, failing to promote, or harassing a female employee for one of those reasons. As the Supreme Court recognized, it also can include other types of negative treatment, such as imposing a stricter set of rules that apply to women seeking to work light duty due to pregnancy than the rules for employees who are seeking to work light duty for other reasons, such as due to a disability.
- Failure to Accommodate Pregnancy or Breastfeeding
The second type of claim under the PWFA is failure to provide a reasonable accommodation for pregnancy or breastfeeding. The court made it clear that, under the PWFA, accommodations can include “temporary transfers to less strenuous or hazardous work” or job restructuring, when one of those accommodations is requested by the employee’s physician.
The Supreme Court held that, to establish a claim for failure to accommodate pregnancy or breastfeeding, an employee must prove: (1) she is pregnant or breastfeeding; (2) she requested a reasonable accommodation such that the employer knew or should have known she needed an accommodation; and (3) the employer failed to provide her a reasonable accommodation.
If the employee proves those elements, then the employer has an affirmative defense if it can prove that (1) the employee could not perform an essential function of her job and (2) her continued employment with an accommodation would have imposed an undue hardship on the employer. But the mere fact that an employee temporarily cannot perform an essential function of her job, even with an accommodation, is not a sufficient basis for an employer to refuse to provide the accommodation on its own. This is noteworthy, since employers are not required to provide a reasonable accommodation for an employee’s disability unless the employee can perform the essential functions of her job with the accommodation.
- Unlawful penalization of pregnancy or breastfeeding
The third type of claim under the PWFA arises when an employer penalizes an employee who sought an accommodation for pregnancy or breastfeeding. The New Jersey Supreme Court provided two examples of prohibited penalties: (1) when an employer makes the conditions of an accommodation particularly harsh, which it called “grudging ‘compliance’” with the PWFA; and (2) when the employer responds to an employee’s request for an accommodation by creating a hostile work environment for her.
If you believe your employer has violated your rights under the PWFA, please feel free to contact us to schedule a consultation with one of our employment lawyers.