Supreme Court Issues Important Guidance on Claims of Pregnancy and Breastfeeding Discrimination

Last week, in the case of Delanoy v. Township of Ocean, the New Jersey Supreme Court issued a landmark opinion detailing the legal protections available to pregnant and breastfeeding workers under the New Jersey Pregnant Workers Fairness Act.  The Supreme Court, in a unanimous opinion, elucidated the parameters within which a pregnant or breastfeeding employee from New Jersey may assert statutory claims against her employer.  This decision is widely being considered by New Jersey employment lawyers as a victory to women’s rights.

IMG_0544-300x169The Pregnant Workers Fairness Act affords specific protections in the workplace for pregnant and breastfeeding women. The law amended certain parts of the New Jersey Law Against Discrimination by specifically including “pregnancy or breastfeeding” as a protected classification, as well as adding a new section to the Law Against Discrimination, which clarifies an employer’s legal obligations to a pregnant or breastfeeding employee. The Pregnant Workers Fairness Act reads, in relevant part, that it is illegal:

For an employer to treat, for employment-related purposes, a woman employee that the employer knows, or should know, is affected by pregnancy or breastfeeding in a manner less favorable than the treatment of other persons not affected by pregnancy or breastfeeding but similar in their ability or inability to work. In addition, an employer of an employee who is a woman affected by pregnancy shall make available to the employee reasonable accommodation in the workplace, such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work, for needs related to the pregnancy when the employee, based on the advice of her physician, requests the accommodation, and, in the case of a[n] employee breast feeding her infant child, the accommodation shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child, unless the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer. The employer shall not in any way penalize the employee in terms, conditions or privileges of employment for requesting or using the accommodation. . . . 

in determining whether an accommodation would impose undue hardship on the operation of an employer’s business, the factors to be considered include: the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget; 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.

Considering the legal impact of the Pregnant Workers Fairness Act for the first time, the Supreme Court upheld the Appellate Division’s determination that the pregnancy law creates three distinct statutory causes of action: 1) “unequal” or “unfavorable” treatment of a pregnant or breastfeeding employee; 2) failure to provide a reasonable accommodation to a pregnant or breastfeeding employee; and 3) penalization of a pregnant or breastfeeding employee for requesting an accommodation.

Unequal Treatment

Plaintiff Kathleen Delanoy, a police officer, brought a pregnancy discrimination claim against her employer, the Township of Ocean, based on the Standing Operating Procedures (SOPs) that established different requirements for light-duty work for pregnant employees versus injured employees. The light duty option for pregnant police officers required that they return to regular duty no more than 45 days after their due date and the pregnant officers were required to exhaust all their accumulated leave. In contrast, injured officers could remain on light duty until they were cleared by their doctors to return to full duty, and the police chief had express authority waive the accumulated leave requirement. Because the light duty SOPs for pregnant officers plainly treated them less favorably than non-pregnant employees, they constituted a per seviolation of the Pregnant Workers Fairness Act’s prohibition of unfavorable treatment of pregnant or breastfeeding employees.

Reasonable Accommodation

The Supreme Court found that when prescribed by a doctor and requested by the employee, an employer is legally obligated to provide pregnancy and breastfeeding accommodations unless they create an undue hardship for the employer. Because undue hardship is an affirmative defense to a failure to accommodate claim, the employer carries the burden of proving undue hardship as well as any claims about the employee’s inability to perform essential functions of the job. The Court held that a temporary inability to perform an essential job function does not automatically rise to the level of undue hardship, but rather is a factor to consider in the totality of the circumstances.

Notably, this analysis is more favorable to employees than that used for disability accommodations. Generally, in a disability accommodation case, an accommodation that is unreasonably expensive or difficult, interferes with efficient operation or violates the employer’s seniority system or any collective bargaining agreement will create an undue hardship. Additionally, the disabled employee’s inability to perform the essential functions of the job will rise to the level of undue hardship for the employer.


The third cause of action, penalization, is independent of unfavorable or unequal treatment and is applicable when the conditions of a particular accommodation are especially harsh or create a hostile working environment for the pregnant or breastfeeding employee.  The Supreme Court found that the legislative intent of this cause of action was to promote the public policy favoring the continued presence of pregnant and breastfeeding employees at work.

The Supreme Court’s decision highlights the specificity with which pregnancy discrimination claims must now be pled. If you believe you have been the victim of pregnancy or breastfeeding discrimination at work, it is imperative that you contact an experienced attorney who can walk you through your legal rights.

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