New Jersey Supreme Court Upholds Bias Claim Under Pregnant Workers Fairness Act

In Delanoy v. Township of Ocean, (A-68-19/084022) (Decided March 9, 2021), the Supreme Court of New Jersey held that Township of Ocean Police Department’s disparate procedures violate the Pregnant Workers Fairness Act (PWFA). It was the first time the state’s highest court had considered the PWFA, which amended existing portions of the New Jersey Law Against Discrimination (LAD) by including “pregnancy or breastfeeding” as a protected classifications.

Pregnant Workers Fairness Act of 2014

The PWFA includes provisions that require employers to provide pregnant workers, upon request, with reasonable accommodations that can enable them to perform their essential job functions, as well as a mandate that the employer must not “penalize” a pregnant worker for requesting or receiving the accommodation. The statute also includes an undue hardship exception to the reasonable accommodation provision.

Facts of Delanoy v. Township of Ocean

Plaintiff Kathleen Delanoy, a police officer, brought a pregnancy discrimination claim against her employer, the Township of Ocean, alleging in part that the Standing Operating Procedures (SOPs) issued by the then-Chief of Police and the Township’s treatment of her violated the LAD as modified by 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 injured officers. Both required a doctor’s note recommending light duty, and both required that officers use all their accumulated paid leave time. The SOPs had two important 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 exhaustion-of- accumulated-leave condition; the Maternity SOP did not have an equivalent provision.

Consistent with the Maternity SOP, in September 2014, Delanoy began a light- duty assignment in which she served until she reached the date on which the Township required her to use her available leave time. While serving on light-duty assignment, Delanoy informed her supervisors that her pregnancy prevented her from carrying a gun or defending herself on patrol, and accordingly she was assigned to handle records and work as a “walk-in” officer, responsible for fielding complaints from the public.

Delanoy challenged the Maternity SOP on its face and as applied to her. The trial court granted summary judgment in favor of the Township, finding that the Maternity SOP as

applied to Delanoy did not violate the PWFA’s “equal treatment” mandate as a matter of law. The Appellate Division reversed. It upheld Delanoy’s facial challenge to the Township’s SOP policies and directed the trial court to grant her requests for declaratory and injunctive relief. “We hold the Department’s maternity assignment policy, as written, unlawfully discriminates against pregnant employees as compared to nonpregnant employees who can seek and potentially obtain a waiver from the Police Chief. Such nonequal treatment violates the PWFA,” Judge Jack Sabatino wrote on behalf of the court. “Consequently, we uphold plaintiff’s facial challenge to those uneven policies and direct the trial court to grant her discrete requests for declaratory and injunctive relief, leaving other remedial issues to the trial court.”

Supreme Court’s Decision in Delanoy v. Township of Ocean

The New Jersey Supreme Court affirmed. “We agree that Delanoy’s claim should not have been dismissed and therefore affirm the Appellate Division’s judgment,” Justice Jaynee LaVecchia, wrote. “More importantly, we concur in the Appellate Division’s illumination of the PWFA as providing multiple theories on which a claim may be based.”

The court agreed with the Appellate Division that there are three distinct causes of action within subsection (s) of the PWFA: 1) unequal or unfavorable treatment; 2) failure to accommodate; and 3) unlawful penalization. Going forward, it directed plaintiffs bringing claims under subsection (s) of the PWFA to identify the theories on which their causes of action rely. “Providing that rather minimal level of clarity about the asserted objectionable behavior will facilitate enforcement of the PWFA’s goals and promote litigation economy and efficiency when a plaintiff seeks enforcement of a statute, like the PWFA, that contemplates various forms of protected conduct,” Justice LaVecchia wrote.

The New Jersey Supreme Court went on to hold that the Maternity SOP was facially invalid because it plainly treated pregnant employees differently and less favorably than non-pregnant employees who were similar in their ability or inability to work. In support, it noted that the Light Duty SOP provided for a waiver of the accumulated-leave condition, while the Maternity SOP did not. Unlike the Appellate Division, the New Jersey Supreme Court found no question that requires resolution, on remand, concerning whether the Maternity SOP was applied in a discriminatory way as to this claim. According to the court, the policy was perforce applied to Delanoy in a discriminatory way by the Township and, therefore, a jury need to decide only causation and damages.

While the New Jersey Supreme Court found a statutory authority for a reasonable-accommodation claim by an employee under the PWFA, it viewed the statutory reasonable-accommodation claim under the PWFA “in a conceptually different manner than that expressed by the Appellate Division.” It went on to hold that a claim for failure to accommodate a pregnant or breastfeeding employee under the PWFA requires the plaintiff to prove three elements: 1) the plaintiff employee must be pregnant or breastfeeding; 2) the plaintiff employee must request reasonable accommodation, as prescribed by subsection (s), so that the employer knows or should know of the plaintiff’s need for an accommodation; and 3) the employer must fail to provide a reasonable accommodation.

The court further explained that the employer has the burden to prove, as an affirmative defense, that providing a reasonable accommodation causes an undue hardship. Justice LaVecchia explained:

In that regard, if the employer raises an issue concerning the employee’s ability to perform an essential function of the job, that must be addressed in the context of the undue hardship affirmative defense. The PWFA’s protection of pregnant employees requires that the defendant employer produce proof that the employee cannot fulfill an essential function of her employment and, if so, that her continued employment with the accommodation is an undue hardship for the employer. And, when the defendant satisfies that production-of-proof obligation, then the issue becomes a factual determination for the jury. The jury will consider the contested point about the employee’s temporary inability to perform an alleged essential job function as one of several factors to be considered, in their totality, when assessing whether the employer has proved that the nature of the employer’s business operations renders it an undue hardship to provide a reasonable accommodation that entails a temporary waiver of an essential function of a job.

In this case, the New Jersey Supreme Court concluded that the Township failed to produce any proof to date to sustain its claim that Delanoy couldn’t perform an essential function of her job, which is the primary factor it argued when claiming an undue hardship. It went on to advise that if the Township on remand does produce support for its assertion that carrying a gun is an essential function of the job, that would not necessarily end Delanoy’s claim for reasonable accommodation. Rather, Delanoy’s inability to carry a gun would constitute a factor to be considered in determining whether a reasonable accommodation that waived that requirement would constitute an undue hardship on the Township.

Finally, with regard to the cause of action for unlawful penalization, the New Jersey Supreme Court agreed with the Appellate Division’s characterization. It added that penalization is plainly identified in subsection (s) as an independent cause of action and may arise when conditions of a designated accommodation are made particularly harsh or when the pregnant employee’s request for an accommodation triggers a hostile work environment against that employee. In this case, Delanoy alleged two possible ways to view the Township’s response to her as a penalty: the accumulated leave condition of the Maternity SOP and her claim that she was unfairly assigned to “walk-in” duty and was otherwise treated detrimentally after requesting an accommodation. It is for a jury to decide whether either constituted a penalty.

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