Policy on light-duty assignments discriminates against pregnant employees in violation of New Jersey's Pregnant Workers Fairness Act (PWFA)
On January 3, 2020, the Appellate Division issued a published opinion in Delanoy v. Township of Ocean, et al., A-2899-17T4. A copy of the opinion can be found here. The appeal derives from a pregnancy discrimination lawsuit filed by a female police officer, Kathleen Delanoy, who sued her employer, the Township of Ocean and various township officials (the “Township”). This is the first published opinion examining the PWFA.
The Facts
Delanoy became a Township police officer in January 2003. On or about September 19, 2014, Delanoy informed her supervisors of her second pregnancy1 and her doctor’s recommendation that she be taken off patrol and reassigned/transferred to a “light-duty” assignment consistent with the Maternity Assignment Standard Operating Procedure (“Maternity SOP”). This policy requires that pregnant officers exhaust all available paid time off before transferring to a light-duty assignment. Similarly, the Township maintains a “Light-Duty/Modified Duty Standard Operating Procedure” (“Light-Duty SOP”) for non-pregnant employees, which also requires exhaustion of paid time off prior to light-duty assignment transfer; however, it provides that that non-pregnant injured officers can request a waiver from having to exhaust paid leave time.2 Notably, officers receive their normal salary while on these temporary assignments (rather than the lower salary of a file clerk). Before the SOPs, light-duty was only provided when such an assignment existed and was available. Delanoy was placed on “light-duty” assignment on September 22, 2014 through the delivery of her newborn and was required to exhaust accumulated paid time off as a condition of transfer to the maternity assignment.
The PWFA amended New Jersey’s Law Against Discrimination (NJLAD) in January 2014, expressly prohibiting discrimination on the basis of pregnancy including, among other things, a requirement that employers provide reasonable accommodation to pregnant employees. The PWFA also provides that it is unlawful for the pregnant employee to be penalized for exercising her rights under the statute.
In her Complaint, Delanoy argues that the Maternity SOP discriminates against pregnant officers since it requires leave exhaustion, essentially treating pregnancy employees less favorably. Delanoy also argues that the Maternity SOP violates the PWFA since she is entitled to reasonable accommodation and requiring exhaustion of leave prior to light-duty assignment unlawfully subjects her to a penalty for exercising her rights under the PWFA.
The Trial Court entered summary judgment in favor of the Township defendants, dismissing Plaintiff’s Complaint finding that the Maternity SOP’s exhaustion of leave provision did not violate the PWFA, never reaching a decision regarding the issue of reasonable accommodation, undue hardship or penalty. The Trial Court also denied Delanoy’s cross-motion for partial summary judgment.
Essentially, the Trial Court opined that all employees (pregnant and non-pregnant) are required to exhaust paid time off and that there was no evidence of discriminatory intent on the part of the Township. The waiver provision really applied only to high-ranking superior officers, not patrol officers, like Delanoy. The Trial Court also found that forfeiture of paid time off did not constitute adverse action or a penalty.
On Appeal
The issue before the Appellate Division focused on whether pregnancy officers were treated unequally as to non-pregnant officers. The Appellate Division found that the Maternity SOP is less favorable than the Light-Duty SOP and facially unequal because the Light-Duty SOP allows for a waiver of the exhaustion of paid time off provision. The Appellate Division, however, held that it is less clear whether Delanoy suffered damages since Delanoy never had the opportunity to apply for a waiver.
As to the issue of reasonable accommodation, the Appellate Division disagreed with the Township’s contention that it was not required to accommodate pregnant employees who were no longer able to perform the essential functions of the job, holding that pregnant employees are entitled to temporary reasonable accommodation, including re-assignment to less strenuous or dangerous positions even if they cannot perform the essential functions of their position.
As to whether the exhaustion of leave provision constitutes an unlawful penalty, the Appellate Division declined to resolve the issue and deferred the assessment to a jury. It did, however, provide guidance on the meaning of “penalty” opining that the term seems to prevent employers from imposing “especially harsh” conditions on accommodations.
Ultimately, the Appellate Division vacated entry of summary judgment, holding that the Maternity SOP unlawfully discriminates against pregnant employees in comparison to non-pregnant employees who can request and potentially receive a waiver of the leave exhaustion requirement.
The Bottom Line
The Appellate Division made no ruling about whether employers could require an exhaustion of leave prior to light-duty assignment and remanded back to the Trial Court for further determinations. The questions for the Trial Court will be whether the exhaustion of leave condition is so extreme as to constitute an unlawful penalty under the statute and to evaluate the Township’s undue hardship defense.
1 This is Delanoy’s second lawsuit against the Township. Delanoy sued the Township with regard to her first pregnancy. The first lawsuit was settled and dismissed while the second lawsuit was pending.
2 There is another difference between the Maternity SOP and the Light-Duty SOP. The Light-Duty SOP provides that the “return-to-duty” is controlled by the employee’s treating physician. The “return-to-duty” under the Maternity SOP is decided by a formula with a maximum of 45 days after the newborn’s expected due date.