The New Jersey Supreme Court has clarified the scope of the Pregnant Workers Fairness Act (PWFA) in a decision that outlines the contours of the statute’s three distinct causes of action.

The Court’s unanimous decision in Delanoy v. Township of Ocean, et al., handed down on March 9, 2021, illuminates employers’ obligations to pregnant and breastfeeding employees, and demonstrates the need for employers to be thoughtful and careful in handling requests for reasonable accommodations from pregnant and breastfeeding employees.

Passed in 2014, the PWFA amended existing portions of the New Jersey Law Against Discrimination (LAD) by including “pregnancy or breastfeeding” as a protected classification under the LAD and added an additional subsection to the LAD statute, which elaborates on an employer’s obligations to pregnant or breastfeeding employees. The Delanoy case was the first time the Supreme Court has addressed the PWFA.

Background

Plaintiff Kathleen Delanoy, an Ocean Township police officer, brought a pregnancy discrimination claim against the Township of Ocean, alleging that its Standing Operating Procedures (SOPs) and the Township’s treatment of her violated the PWFA.

There were two SOPs that provided an option for light-duty work. The Maternity SOP applied to pregnant officers, and the Light Duty SOP applied to non-pregnant officers who were injured. Both SOPs required a doctor’s note recommending light duty, and both required that officers use all their accumulated paid leave time. However, the SOPs had two significant differences. First, under the Maternity SOP, the projected return date had to be “no more than 45 calendar days past the expected due date.” Under the Light Duty SOP, the doctor’s projected date for the officer’s return to full duty would control. Second, under the Light Duty SOP, the police chief had discretion to waive the use-of-accumulated-leave condition, while the Maternity SOP did not have an equivalent provision.

In September 2014, Delanoy began a light-duty assignment consistent with the Maternity SOP and continued working until she reached the date on which the Township required her to use her available leave time. While working on light-duty, Delanoy notified her supervisors that her pregnancy prevented her from carrying a gun or defending herself on patrol. As a result, Delanoy was assigned to work in records and as a “walk-in” officer handling complaints from the public.

Delanoy filed suit and challenged the Maternity SOP both on its face and as applied specifically to her. The trial court granted summary judgment in favor of the township, finding that the Maternity SOP did not violate the “equal treatment” mandate of PWFA, as applied to Delanoy. On appeal, the Appellate Division upheld Delanoy’s facial challenge to the light-duty policies, vacated the trial court’s summary judgment ruling and remanded the case to the trial court with directions to grant Delanoy’s requests for declaratory and injunctive relief. The Appellate Division also vacated the trial court’s award of summary judgment to the township on the reasonableness of the policies’ leave-time condition, as the trial court had held that the condition was not so harsh as to comprise an impermissible penalty.

New Jersey Supreme Court’s Decision

When brought before the New Jersey Supreme Court, the Court held that the Maternity SOP violated the PWFA and provisions of the LAD by placing additional burdens on pregnant officers who sought light duty. In affirming the Appellate Division’s decision, the Court explained that the PWFA recognizes three distinct causes of action for pregnant and breastfeeding women:

• “unequal” or “unfavorable” treatment
• failure to provide a reasonable accommodation
• penalization for requesting an accommodation

The 30-page opinion, authored by Justice LaVecchia, went on to explain the contours of each cause of action.

With respect to “unequal treatment” or “unfair treatment” claims, the Court held that the Maternity SOP was facially invalid because it plainly treated pregnant employees differently and less favorably than non-pregnant employees who sought light-duty work. This difference, the Court concluded, constituted a per se violation of the PWFA’s prohibition on unequal treatment of pregnant employees.

Burden Shifts for Undue Hardship

With regard to Delanoy’s failure to accommodate claim, the Court explained that the PWFA creates a statutory right to a reasonable accommodation for current employees who become pregnant and request an accommodation based on a physician’s advice. The Court explained that a different analytical framework is applicable to reasonable-accommodation claims under the PWFA. The Court explained that a failure-to-accommodate claim under the PWFA requires a plaintiff to prove three elements: (1) the plaintiff employee must be pregnant or breastfeeding; (2) the plaintiff employee must request a reasonable accommodation, and (3) the employer must fail to provide a reasonable accommodation. The Court further explained that the PWFA establishes undue hardship as an affirmative defense to a failure-to-accommodate claim, but the employer carries the burden of proof.  This includes establishing that an employee is unable to perform an essential function of the job, if it is the basis for the undue hardship defense. The Court made clear that it is not the plaintiff employee’s burden to prove the absence of an undue hardship as part of a prima facie case.

With regard to the unlawful penalization claims, the Court agreed with the Appellate Division’s descriptions of the cause of action for unlawful penalization and added that penalization is plainly identified in subsection (s) as an independent cause of action. The Court concluded that the Legislature intended for the PWFA to have its own teeth in promoting the public policy in favor of having employers welcome pregnant and breastfeeding employees in the workplace. An employee may allege a claim of illegal penalty when conditions of a designated accommodation are made particularly harsh. Separately, a viable claim of penalty may arise if a pregnant employee’s request for an accommodation triggers a hostile work environment against that employee.

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