Patricia M. Prezioso, Jordan E. Pace
Employment and Labor
March 17, 2021
On March 9, 2021, the New Jersey Supreme Court issued its
first opinion in a case concerning the New Jersey Pregnant Workers Fairness Act
(“PWFA”) and took the opportunity to remind employers of the breadth of the
PWFA, the ways employers may run afoul of the law, and what employers must do
when denying pregnant or breastfeeding employees accommodation on the basis of
claimed undue hardship on the employer.
Signed into law in 2014 by Governor Christie, the PWFA makes
pregnancy and breastfeeding protected characteristics under New Jersey’s Law
Against Discrimination (the “LAD”). Thus, employers may not discharge or otherwise discriminate against
employees because they
are pregnant or breastfeeding, just as employers may not discharge or otherwise
discriminate against employees because of their race, religion, national origin,
etc. The PWFA also requires employers to
provide reasonable accommodations to pregnant or breastfeeding employees upon
request, unless the accommodation would be an undue hardship to business operations.
The Delanoy Case
The case before the Supreme Court, Delanoy v. Township of Ocean, involved a pregnant police
officer. The Township’s police
department maintained two policies for officers needing light duty, one applicable to pregnant officers and a
separate one applicable to non-pregnant, injured officers. For non-pregnant officers, return to full
duty was dependent on a doctor’s projected return date, while the policy for
pregnant officers required a return to full duty within 45 days of her expected
due date. Moreover, while both policies
required officers to use all of their accumulated leave as a condition of light
duty, the police chief had discretion to waive the accumulated-leave-exhaustion
requirement for non-pregnant officers, but not for pregnant officers.
The Supreme Court unanimously held that the Township’s
policies were facially discriminatory, constituting unfavorable treatment of
pregnant employees. Accordingly, the
officer did not need to prove that any policy was applied to her in a
discriminatory way. She only needed to
prove that she suffered damages caused by the discriminatory policies.
Three Kinds of
Violations of the PWFA
The Supreme Court used the Delanoy case to discuss the ways employers may run afoul of the
PWFA. Specifically, the Court identified
three potential violations of the PWFA (and, by extension the LAD): (i) unequal or unfavorable treatment of a pregnant or breastfeeding employee; (ii) failure to provide a reasonable
accommodation; and (iii) illegal penalization of an employee who requests
or uses an accommodation.
A pregnant or breastfeeding employee may sue under the LAD
and PWFA for any one, or any combination, of these three causes of action, and
may recover damages as well as attorneys’ fees.
Employers Must Prove that an Accommodation Is an Undue Hardship
The PWFA requires employers to provide reasonable
accommodations for pregnant and breastfeeding employees, which may take many
forms, including increased bathroom breaks, extra rest breaks, or a modified
schedule. However, an employer need not
grant any accommodation that would be an undue hardship on its business
operations. Critically, the PWFA makes
clear, and the Supreme Court reiterated, that the burden is on the employer to
prove that an accommodation would be an undue hardship. The PWFA provides a non-exhaustive list of
factors to be considered in determining what constitutes an undue hardship:
- The overall size of the employer’s business with
respect to the number of employees, number and type of facilities, and size of
- The type of the employer’s operations, including
the composition and structure of the employer’s workforce;
- The nature and cost of the accommodation needed,
taking into consideration the availability of tax credits, tax deductions, and
outside funding; and
- The extent to which the accommodation would
involve waiver of an essential requirement of a job as opposed to a tangential
or non-business necessity requirement.
In Delanoy, the
employee police officer reported that her pregnancy prevented her from carrying
a gun or defending herself on patrol, and her employer asserted that carrying a
gun is an essential function of her job. The Supreme Court explained that the last
factor—whether an accommodation waives an essential job requirement—is not a
disqualifier even if true. An employee’s
temporary inability to perform an essential job function does not automatically
constitute an undue hardship. Rather, it
is just one factor to consider among all of the employer’s circumstances in
determining whether or not an accommodation is an undue hardship.
Other Federal and
State Laws in New Jersey and New York
Federal law, principally Title VII of the Civil Rights
Act of 1964, prohibits discrimination against pregnant and breastfeeding
employees and requires the provision of reasonable accommodations. Moreover, for employers in New York, both
state and city law provide protections and impose requirements that, like the
PWFA, may be broader than under federal law. Employers must comply with federal, state, and local laws in their
treatment of employees, including pregnant and breastfeeding employees.
Employers should ensure that their policies treat pregnant
and breastfeeding employees requiring light duty or other accommodations equally
and as favorably as non-pregnant/non-breastfeeding employees requiring similar
accommodations, both as written and as applied. Moreover, employers should exercise caution before denying any
accommodation requested by a pregnant or breastfeeding employee and should
carefully consider the relevant factors before deciding that a requested
accommodation would be an undue hardship. An interactive process/cooperative dialogue with the employee is a
necessary and indispensable step in an employer’s consideration of any
requested accommodation. Employers
should also ensure that pregnant and breastfeeding employees who request or use
accommodations do not suffer any retaliation or harassment as a result.
Attorneys in our Employment and Labor Law Practice Group are
available to advise employers on crafting non-discriminatory policies and on
responding to accommodation requests from pregnant and breastfeeding employees.
This Client Alert has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.