Supreme Court: Failure to provide light-duty accommodation for pregnant officer is unlawful discrimination

NJ STATE PBA LEGAL CORNER

By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq.

The New Jersey State Legislature enacted the Pregnancy Fairness Act (PWFA) in 2014 to provide protections for pregnant and breastfeeding employees. The PWFA amended the Law Against Discrimination (LAD). In a recent decision, the New Jersey Supreme Court unanimously held that a failure to provide temporary light-duty accommodation for a pregnant law enforcement officer constitutes discrimination under the LAD and the PWFA.

In Delanoy v. Township of Ocean, a pregnant police officer alleged that the township violated the LAD and PWFA because the collective negotiations agreement imposed different standards under the township’s Maternity Assignment Standard Operating Procedure (Maternity SOP) and its Light-Duty/Modified Duty Standard Operating Procedure (Light-Duty SOP). Although both SOPs required that an officer utilize accrued personal leave time prior to making a request for a light duty or maternity-based assignment, only the Light-Duty SOP authorized the police chief to waive this condition on a case-by-case basis. Given this difference, pregnant officers had no ability to seek a waiver from the requirement to utilize personal leave prior to requesting maternity-based re-assignment.

The policies also differed in how they set an officer’s return-to-duty date. Under the Light-Duty SOP, the return-to-duty date is set by the employee’s treating doctor. But under the Maternity SOP, the return-to-duty date is set according to a formula, but no more than 45 calendar days past the employee’s expected due date.

The plaintiff alleged that the policies discriminated against pregnant employees in violation of the LAD. Under the LAD, an employer must provide reasonable workplace accommodations for disabled employees, provided that their disability does not inhibit their ability to perform the essential functions of their job. In addition, as noted above, the PWFA amended the LAD to prohibit pregnancy-based discrimination. Specifically, the PWFA requires an employer to provide reasonable accommodations in the workplace to pregnant women upon their request, and further provides that pregnant women may not be penalized because of their pregnancy. The only exception would be if an employer can demonstrate that the accommodation would present an undue hardship or that the disability prevents the employee from performing the essential functions of the job.

The New Jersey Supreme Court unanimously rejected the township’s arguments that reassigning the plaintiff from her normal duties to an administrative intake role constituted a newly created position that warranted the subtraction of her accrued personal leave. In addition, the court rejected the township’s claim that since the plaintiff admitted she could not perform certain essential functions of her job in the later term of her pregnancy, it did not violate the LAD or PWFA.

In affirming the opinion of the appellate division, the court established several key takeaways to consider when bringing claims under the PWFA. First, the court agreed that the PWFA, combined with a common-sense application of the LAD, provides for an “unequal treatment” or “unfavorable treatment” claim for pregnant employees. By this standard, the Maternity SOP was found to be 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.

Second, while the court agreed that the PWFA provides for a reasonable-accommodation claim, the court differed from the appellate division in the framing of that claim. Rather than apply prior case-law precedent, which has not specifically addressed a failure to accommodate a disability, the court determined that a reasonable accommodations claim brought under the PWFA should focus on the statutory provisions set forth in N.J.S.A. 10:5-12(s), namely a specific analytical framework with respect to pregnancy accommodations. According to the statute, accommodations for a pregnant employee may include “temporary transfers to less strenuous or hazardous work.”

Lastly, the court affirmed that the PWFA creates a cause of action when an employer essentially penalizes a pregnant employee for being pregnant. N.J.S.A. 10:5-12(s) provides that an employer “shall not in any way penalize the employee in terms, conditions or privileges of employment for requesting or using [an] accommodation.” Thus, a viable claim of illegal penalty 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.

A claim under N.J.S.A. 10:5-12(s) does, of course, remain subject to the affirmative defense that an employer is not required to provide an accommodation when doing so would present “an undue hardship on the business operations of the employer.” Accordingly, the court remanded the case to the trial court to give the township an opportunity to produce evidence that plaintiff could not perform the essential functions of the job.

The court also clarified that “hardship” means waiver of an essential requirement of a job as opposed to waiving a tangential requirement or non-business need. Additionally, waiver of an essential function on a temporary basis, such as during a pregnancy, does not automatically rise to the level of “undue hardship.” Rather, it is a factor to consider in the totality of the evidence. If the employer can raise a genuine question about the undue hardship in the context of a temporary accommodation, then the issue must be resolved by a jury.

While some prior cases have addressed accommodation issues for pregnant officers, this is the first time the NJ Supreme Court has definitively decided what pregnant officers may expect from their departments. Most likely, departments will agree to all but the most burdensome requests. In any event, PBA Locals should compare any policies that apply to pregnant officers with light duty policies or related policies to determine if pregnant officers are being treated less favorably than other officers with non-pregnancy-related disabilities.  Any differences may be violations of the PWFA and LAD.