On January 3, 2020, a New Jersey Superior Court Appellate Division (“Appellate Division”) panel released the first published, binding judicial opinion interpreting the New Jersey Pregnant Worker’s Fairness Act (“PWFA”) since the PWFA amended the New Jersey Law Against Discrimination (“LAD”) to strengthen legal protections for pregnant women from workplace discrimination in January 2014. Most notably, the PWFA requires that employers provide pregnant workers with reasonable accommodations to enable them to perform their essential job functions, unless an accommodation would present an undue burden for the employer, and prohibits employers from retaliating against (or “penalizing”) pregnant workers for requesting or receiving accommodations.

In Delanoy v. Township of Ocean, the recent Appellate Division decision interpreting the PWFA, Kathleen Delanoy, a pregnant police officer, presented a doctor’s note and requested a light-duty maternity assignment until the end of her pregnancy under the Ocean Township Police Department’s Maternity Standard Operating Procedure (“Maternity SOP”). The Maternity SOP differed from the Department’s Light-Duty Standard Operating Procedure (“Light-Duty SOP”), which applied to non-pregnant employees. While both SOPs required that employees use up to all of their accumulated leave before transferring to light duty in theory, the Light-Duty SOP gave the police chief discretion to waive this requirement in practice, while the Maternity SOP did not. Delanoy also claimed that her re-assigned duties, which included meeting with people who reported incidents in person and preparing “walk-in” reports, made her “absolutely terrified” and were in retaliation for requesting reasonable accommodations for her pregnancy. Delanoy, who could not wear her gun while on “walk-in” duty, felt vulnerable and unable to defend herself and her unborn child in the event that a walk-in civilian became violent. As with other pregnant women, the police department also required that Delanoy start her pregnancy leave before her pregnancy ended and use accrued leave time during that period.

Because no pregnant officers could obtain a waiver under the Maternity SOP, unlike their non-pregnant counterparts, the Court ruled that the Maternity SOP was unlawfully discriminatory.

With respect to reasonable accommodations, the court explained that while the LAD does not require the creation of permanent and indefinite light duty positions for non-pregnant employees, the PWFA expressly cites “temporary transfers to less strenuous or hazardous work” as a reasonable accommodation.

While the Delanoy opinion provides some guidance to employers, it leaves many other questions unanswered, including what comprises a reasonable accommodation and when any conditions attached to an accommodation become a prohibited, retaliatory “penalty.” Regardless, in light of Delanoy, New Jersey employers should still:

  1. Ensure that their policies do not treat pregnant and non-pregnant employees differently either in theory or in actual practice, particularly with regard to leaves and accommodations.
  2. Educate managers and decision-makers regarding equal treatment of pregnant and non-pregnant employees who request accommodations or leaves under employer policies. Even good intentions can lead to costly and lengthy litigation.
  3. Establish a process where all requests for reasonable accommodations are received, analyzed, decided, and responded to in writing, to increase consistency in decision-making and reduce the risk of litigation.

If your business has any questions about the Delanoy case or lawful treatment of pregnant workers under the New Jersey Pregnant Workers Fairness Act or other state and federal laws, please contact Lisa M. Scidurlo at lmsc@stevenslee.com, Harry Horwitz at hah@stevenslee.com, Alexander V. Batoff at avb@stevenslee.com, or the Stevens & Lee attorney with whom you regularly work.