The New Jersey Appellate Division has ruled that an employer’s pregnancy leave policy that requires pregnant employees to exhaust their accrued paid sick and vacation time to be in violation the New Jersey Law Against Discrimination. In finding for the employee in the reported decision of the the entitled Delanoy v. Township of Ocean, the analyzed the New Jersey Pregnant Workers Fairness Act, an amendment to the Law Against Discrimination dating back to January 17, 2014, which specifically made pregnancy a protected class under the state anti-discrimination law. The court’s decision is being viewed as a significant legal victory of New Jersey pregnant worker’s rights.
The appeal arose from a suit brought by an Ocean Township police officer, alleging pregnancy-based discrimination in connection with her request for an accommodation related to her pregnancy. Specifically, she claimed that the Township’s policy regarding pregnant workers is discriminatory on its face and that the requirement that she exchange her accrued PTO as a condition of her accommodation amounted to an unlawful penalty.When Plaintiff became pregnant, she submitted a doctor’s note to the Township advising them of her pregnancy and her need to be transferred to a light-duty position. Plaintiff sought the transfer from September 22, 2014 through the end of her pregnancy, in March 2015.
On or about September 22, 2014, Plaintiff was provided an administrative position in the Township’s Department of Records, and was further assigned to receiving walk-in complaints at the police station. In her role as the walk-in officer, Plaintiff did not feel comfortable as her pregnancy precluded the use of her firearm and the position had dangerous propensities. Nevertheless, she performed her duties as instructed. Despite her ability to work and prior to her expected due date, around February 25, 2015, the Township forced Plaintiff to take her pregnancy leave early and begin using her PTO. In total, Plaintiff was required to deplete 2 weeks of PTO.
Ocean Township maintains separate policies for pregnant and non-pregnant officers seeking light-duty accommodations. Under the Township’s Maternity Assignment Standard Operating Procedure (“SOP”), pregnant officers are eligible to transfer to a light-duty position. The policy allows for the creation of an entirely new position for the officer if there is not one presently available. However, as a condition of the transfer, the officer is required to first expend all available PTO in order to obtain the alternative position. While this same condition is required of both pregnant and non-pregnant officers seeking a light-duty accommodation, non-pregnant officers can seek a waiver of the PTO depletion requirement. The SOP provides no such waiver for pregnant officers.
In the lawsuit, Plaintiff argued that the SOP treats pregnant officers less favorably than non-pregnant officers as it does not provide any waiver. Further, she argued that the requirement that she utilize her PTO was in violation of the Township’s duty to accommodate her pregnancy and amounted to a penalty. The Township argued that because the SOP creates new positions for pregnant officers, it can expect the officer to pay for that benefit through the use of PTO. The Township further argued that, in Plaintiff’s circumstance, she was not entitled to an accommodation because she was medically unable to perform the essential duties of her job as a police office during her pregnancy.
In analyzing this matter within the scope of the Pregnancy Workers Fairness Act, the court identified the following four elements to prove a claim (1) Prohibition of the unequal treatment of pregnant workers; (2) The requirement, upon request, to provide a pregnant worker with reasonable accommodations that enable her to perform her essential job functions; (3) Prohibition on penalizing pregnant workers for having requested or received an accommodation; and (4) An exception for any undue hardships on the employer.
The Pregnancy Workers Fairness Act provides that accommodations given to pregnant workers “shall not be provided in a manner less favorable than accommodation or leave provided to other employees who are unable to perform their usual jobs for reasons other than pregnancy.” The court quickly agreed with Plaintiff’s assertion that the SOP was discriminatory on its face as no pregnant officer had the opportunity to seek a waiver. The court highlighted that the opportunity to waive the requirement to exhaust PTO, which the Township provided to non-pregnant officers, but denied pregnant officers, made the SOP less favorable to pregnant officers. Accordingly, the Appellate Division reversed the trial court’s decision and remanded it on this point.
In order to prove a cause of action for failure to accommodate, a plaintiff must prove (1) she had a disability; (2) was able to perform the essential functions of her job with or without an accommodation; (3) the employer was aware of the need for an accommodation; and (4) the employer failed to provide the accommodation.
Ocean Township argued that the transfer to a light-duty position was not an accommodation of her pregnancy. It reasoned that because the position was specifically created for plaintiff when a light-duty position did not exist for her, Ocean Township was justified in requiring additional compensation for this benefit through the use of her PTO. Ocean Township argued that because she was working a lower-paying job, while still receiving her regular salary, the use of her PTO was further justified in order to save tax-payer money. Additionally, Ocean Township argued that Plaintiff was not entitled to an accommodation because she admitted that she was unable to perform the duties of her position while she was pregnant. As such, Ocean Township claimed that she did not request an accommodation to make the performance of her position possible, but rather that she requested an entirely new position.
The Appellate Division was not persuaded by these arguments. The court analyzed the distinctions between permanent and temporary accommodations. While the Law Against Discrimination does not require employers to create permanent positions to accommodate employees, the Pregnancy Workers Fairness Act expressly contemplates temporary positions as an accommodation for pregnant employees. Indeed, as an illustration of appropriate accommodations, the Pregnancy Workers Fairness Act provides that “when the employee, based on the advice of her physician, requests the accommodation” such a request may warrant “temporary transfers to less strenuous or hazardous work.” Accordingly, the court determined that such a transfer would amount to accommodation and could be required of the Township irrespective of the POS.
Furthermore, the court held that the Plaintiff’s request for a transfer to a temporary light-duty position did not eliminate her entitlement to an accommodation. Because the Township could have been required to provide a temporary position to Plaintiff, her request for a transfer was a sufficient request for an accommodation. Accordingly, the Township was then obligated to engage in the interactive process to determine an appropriate accommodation for Plaintiff. The court further stated that the POS’s requirement that a doctor’s note be provided stating that the pregnant officer cannot perform her duties in order to receive a light-duty position cannot be considered a waiver of her protections under the law. Therefore, the court held that there were material issues of fact as to Plaintiff’s accommodation claims, including the adequacy of the accommodation and whether there was an undue hardship on the township, and that the determination was best suited for a jury. The matter was remanded for this purpose.
This decision marks a significant step in the protection of pregnant workers under the Law Against Discrimination with the recent extrapolation of the Pregnancy Workers Fairness Act. The determination that a transfer to a light-duty position may be required to accommodate pregnant worker vastly expands the protections afford under federal law. Our New Jersey employment lawyers will continue to monitor and provide updates on developments respecting pregnancy discrimination in New Jersey.