On March 9, 2021, the New Jersey Supreme Court issued its published decision in Delanoy v. Township of Ocean, N.J. (2021). A copy of the opinion can be found here. The case arose from a pregnancy discrimination lawsuit filed by a police officer against her employer and other officials under the then newly enacted New Jersey Pregnant Workers Fairness Act (PWFA), which amended the New Jersey Law Against Discrimination (LAD) to include protections for pregnant or breastfeeding workers. This is the first published opinion by the New Jersey Supreme Court addressing the PWFA.
The Facts and Procedural History
Kathleen Delanoy, a female police officer that became pregnant, sued the Township of Ocean, her employer, and various other township officials (the Township) alleging in part that the Standard Operating Procedures (SOP) issued by the then-Chief of Police and the Township’s treatment of her violated the LAD as modified by the PWFA. One SOP, known as the Maternity SOP, applied only to pregnant officers, and another SOP, known as the Light Duty SOP, applied to non-pregnant officers. Both SOPs permitted officers to receive lighter duties. The SOPs were nearly identical except that under the Light Duty SOP, the police chief had the discretion to waive a condition requiring officers to use their accumulated leave time as a condition of the light-duty assignment.
The trial court originally granted summary judgment in favor of the Township on the basis that the Maternity SOP did not violate the PWFA’s equal treatment mandate. But the Appellate Division reversed the trial court’s decision following its own review of the PWFA. The Appellate Division held that one of SOPs – the Maternity SOP – was facially invalid because pregnant employees were treated unfavorably compared to non-pregnant employees insofar as there was no waiver for the use of accumulated leave time under the Maternity SOP. The Appellate Division’s opinion was described at length in our previous client alert, which can be found here. The Supreme Court granted the Township’s Petition for Certification.
The Decision
The Supreme Court affirmed and modified the Appellate Division’s opinion. It agreed with nearly all of the Appellate Division’s conclusions, with the exception of a few observations and instructions to the trial court.
First, the Supreme Court affirmed the Appellate Division’s conclusion that the Maternity SOP treated pregnant women unfavorably because the Maternity SOP did not provide the same waiver of the accumulated-leave condition contained in the Light Duty SOP. But the Supreme Court disagreed that the question of whether the Maternity SOP was applied in a discriminatory fashion needed to be resolved on remand. Instead, the Supreme Court explained that since it was implemented according to its very terms, the Maternity SOP was inevitably applied to Delanoy in a discriminatory way. Only causation and damages needed to be decided by the jury on remand.
Second, while the Supreme Court recognized a reasonable-accommodation claim, it viewed the claim conceptually different from the Appellate Division, who viewed the statute’s obligation concerning reasonable accommodations as equivalent in approach to all other disability accommodation claims. The Supreme Court stated that the statutory provision related to reasonable accommodations in the LAD as amended by the PWFA enumerated precise, procedurally clear, and detailed protections for pregnant and breastfeeding employees. Based on this reading of the LAD and PWFA, the Supreme Court held that the PWFA can, in some circumstances, require an employer to provide a reasonable accommodation that entails temporarily permitting a pregnant or breastfeeding employee to transfer to work that omits an essential function of her job. The ability of an employee to carry out an essential function of the job is one factor to be considered in determining whether a reasonable accommodation waiving such a requirement is an undue hardship to the employer.
Third, the Supreme Court confirmed that unlawful penalization identified the statutory provision related to reasonable accommodations in the LAD as amended by the PWFA is an independent cause of action. There are two instances where a claim for an illegal penalty is viable: (1) when conditions of a designated accommodation are made particularly harsh, and (2) if the pregnant or breastfeeding employee’s request for an accommodation triggers a hostile work environment against that employee.
Bottom Line
Employers who receive requests for accommodations from pregnant or breastfeeding workers may consider the ability of an employee to carry out an essential function of the job as one factor in determining whether a reasonable accommodation waiving such a requirement is an undue hardship to the employer. Likewise, unlawful penalization is an independent cause of action and is viable when the conditions of a designated accommodation are too harsh and where the accommodation triggers a hostile work environment.
