Kathleen J. Delanoy v. Township of Ocean (084022) (Monmouth County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Delanoy v. Township of Ocean (A-68-19) (084022)
Argued November 10, 2020 -- Decided March 9, 2021
LaVECCHIA, J., writing for the Court.
The New Jersey Pregnant Workers Fairness Act (PWFA) affords specific
protections in the workplace for pregnant and breastfeeding women. The PWFA
amended existing portions of the New Jersey Law Against Discrimination (LAD) by
including “pregnancy or breastfeeding” as a protected classification within existing LAD
prohibitions or protections presented in many subsections of N.J.S.A. 10:5-12; it also
added an entirely new section to that statute, subsection (s), which elaborates on an
employer’s obligations to a pregnant or breastfeeding employee.
In this appeal, the Court considers the PWFA for the first time. Specifically, the
Court considers the Appellate Division’s determination that N.J.S.A. 10:5-12(s) 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 (subject to the employer’s claim of undue hardship,
separately explained in the subsection); and 3) illegal penalization of a pregnant or
breastfeeding employee for requesting an accommodation. 462 N.J. Super. 78, 91-92
(App. Div. 2020).
Plaintiff Kathleen Delanoy, a police officer, brought a pregnancy discrimination
claim against her employer, the Township of Ocean, alleging in part that the Standing
Operating Procedures (SOPs) issued by the then-Chief of Police and the Township’s
treatment of her violated the LAD as modified by the PWFA.
There were two SOPs that provided an option for light-duty work. The Maternity
SOP applied to pregnant officers, and the Light Duty SOP applied to non-pregnant
injured officers. Both required a doctor’s note recommending light duty, and both
required that officers use all their accumulated paid leave time. The SOPs had two
important differences. First, under the Maternity SOP, the projected return date had to be
“no more than 45 calendar days past the expected due date.” Under the Light Duty SOP,
the doctor’s projected date for the officer’s return to full duty would control. Second,
under the Light Duty SOP, the police chief had discretion to waive the exhaustion-of-
accumulated-leave condition; the Maternity SOP did not have an equivalent provision.
1
Consistent with the Maternity SOP, in September 2014, Delanoy began a light-
duty assignment in which she served until she reached the date on which the Township
required her to use her available leave time. While serving on light-duty assignment,
Delanoy informed her supervisors that her pregnancy prevented her from carrying a gun
or defending herself on patrol, and accordingly she was assigned to handle records and
work as a “walk-in” officer, responsible for fielding complaints from the public.
Delanoy challenged the Maternity SOP on its face and as applied to her. The trial
court granted summary judgment in favor of the Township, finding that the Maternity
SOP as applied to Delanoy did not violate the PWFA’s “equal treatment” mandate as a
matter of law. The Appellate Division reviewed this relatively new legislation, as well as
its background and import, vacated the summary judgment ruling, and remanded the
matter to the trial court. Id. at 83-84.
The Court granted certification, 241 N.J. 504 (2020), and affirms substantially for
the reasons contained in the thoughtful opinion authored by Judge Sabatino. To the
extent necessary, the Court provides further exposition on the implementation of this new
statutory remedy for pregnant and breastfeeding women seeking fair treatment and
reasonable accommodation in order to maintain their position in the workplace.
HELD: The Court agrees that the PWFA recognizes for pregnant and breastfeeding
employees three distinct causes of action within N.J.S.A. 10:5-12(s): 1) unequal or
unfavorable treatment; 2) failure to accommodate; and 3) unlawful penalization. The
Court explains the contours of those causes of action and the necessary considerations as
to each upon remand.
1. Delanoy’s complaint did not specifically identify the three causes of action under the
PWFA as distinctly as they are now being argued. Moving forward, the Court instructs
plaintiffs -- and their attorneys -- bringing claims under subsection (s) of the PWFA to
identify the theories on which their causes of action rely. (pp. 12-13)
2. The Court agrees with the Appellate Division’s conclusion that the PWFA includes an
“unequal treatment” or “unfavorable treatment” claim for pregnant employees, 462 N.J.
Super. at 92-93: that conclusion is rooted in a plain, common-sense application of the
terms of subsection (s) and is supported by a contextual analysis, viewing the totality of
new language inserted into the LAD by the PWFA, including the insertion of “pregnant
or breastfeeding” into other pre-existing protective subsections of N.J.S.A. 10:5-12.
(pp. 13-15)
3. Here, the Maternity SOP was facially 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. The Light Duty SOP provided for a waiver of the
accumulated-leave condition, and the Maternity SOP did not. Therefore, on its face, the
2
Maternity SOP constituted a per se violation of the PWFA’s prohibition of unfavorable
treatment of pregnant employees. The Court accordingly affirms the Appellate
Division’s reversal of the trial court’s denial of partial summary judgment to Delanoy on
her facial challenge. Unlike the Appellate Division, however, see id. at 96-98, the Court
sees no question that requires resolution, on remand, concerning whether the Maternity
SOP was applied in a discriminatory way as to this claim. Implemented according to its
very terms, the policy was perforce applied to Delanoy in a discriminatory way by the
Township. Thus, with respect to Delanoy’s claim of unfavorable treatment, the Court
remands for a jury to decide only causation and damages and explains relevant
considerations. (pp. 15-16)
4. The Court also agrees that the PWFA includes a reasonable-accommodation claim,
but it views that claim in a conceptually different manner than that expressed by the
Appellate Division. Rather than relying on case law applying the LAD, which does not
specifically address failure to accommodate a disability, see id. at 99-104, the Court
focuses on the statutory direction in N.J.S.A. 10:5-12(s), which does specifically address
pregnancy accommodation and thus calls for its own analytic structure. (pp. 17-21)
5. Subsection (s) creates a statutory right to reasonable accommodation for currently
serving employees who become pregnant and request an accommodation based on a
physician’s advice; it also permits employers to claim an undue hardship exemption from
their statutory obligation to accommodate pregnant employees in the workplace, stating
that reasonable accommodation is statutorily required “unless the employer can
demonstrate that providing the accommodation would be an undue hardship on the
business operations of the employer.” The statute accordingly establishes undue hardship
as an affirmative defense to a failure-to-accommodate claim as to which the employer
carries the burden of proof, including any claims about the employee’s ability to perform
essential functions of the job. It is not the employee’s burden to prove the absence of an
undue hardship as part of a prima facie case. (pp. 21-22)
6. The final paragraph of subsection (s) identifies factors to consider when determining
whether a proposed accommodation would, in fact, constitute an undue hardship for the
employer, including “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.” That factor acknowledges that a temporary waiver of an essential function
does not automatically rise to the level of “undue hardship,” but rather is a factor to
consider in the totality of the evidence advanced to demonstrate that the accommodation
would cause the employer’s business operations an undue hardship. If the employer can
produce proofs raising a genuine question about the undue hardship of such a temporary
accommodation, then the issue is presented to the jury for resolution. The Court notes
that the distinctions between subsections (s) and (q) of N.J.S.A. 10:5-12 reinforce this
construction of subsection (s). (pp. 22-24)
3
7. The Court sets forth its holding as to the elements of and defenses to a reasonable
accommodation claim under N.J.S.A. 10:5-12(s) and provides guidance about what the
jury must consider. (pp. 24-26)
8. Here, the Township has failed to produce any proof to date to sustain its claim that
Delanoy cannot perform an essential function of her job, which is the primary factor it
argues when claiming an undue hardship. If the Township on remand does produce
support for its assertion that carrying a gun is an essential function of the job, that would
not necessarily end Delanoy’s claim for reasonable accommodation. Delanoy’s inability
to carry a gun would constitute a factor to be considered in determining whether a
reasonable accommodation that waived that requirement would constitute an undue
hardship on the Township. The Court remands to the trial court for it to first determine
whether the Township will come forward with proof of its claim of undue hardship. If
the Township presents such proof, and if that proof raises a genuine issue on the subject
to the trial court’s satisfaction, then the trial court should refer the disputed issue of undue
hardship to a jury. (pp. 26-28)
9. Finally, the Court agrees with the Appellate Division’s descriptions of the cause of
action for unlawful penalization. See id. at 104-05. The Court adds that penalization is
plainly identified in subsection (s) as an independent cause of action. The Legislature
meant it to have its own teeth in promoting the public policy in favor of having
employers welcome the continuing presence of pregnant and breastfeeding employees in
their workplaces. A viable claim of illegal penalty may arise when conditions of a
designated accommodation are made particularly harsh. Separately, a viable claim of
penalty may arise if the pregnant employee’s request for an accommodation triggers a
hostile work environment against that employee. All of the contemplated forms of
penalty should be considered when a model jury charge is fashioned in this new area.
(pp. 28-29)
10. Here, Delanoy alleged two possible ways to view the Township’s response to her as
a penalty: the accumulated leave condition of the Maternity SOP and her claim that she
was unfairly assigned to “walk-in” duty and was otherwise treated detrimentally after
requesting an accommodation. It is for a jury to decide whether either constituted a
penalty. (pp. 29-30)
AFFIRMED AS MODIFIED. REMANDED for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
LaVECCHIA’s opinion.
4
SUPREME COURT OF NEW JERSEY
A-68 September Term 2019
084022
Kathleen J. Delanoy,
Plaintiff-Respondent,
v.
Township of Ocean, Andrew Brannen,
Steven Peters, Neil Ingenito, William Larkin,
Christopher Siciliano, W. Michael Evans,
William Garofalo, and Donna Schepiga,
Defendants-Appellants.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
462 N.J. Super. 78 (App. Div. 2020).
Argued Decided
November 10, 2020 March 9, 2021
Lori A. Dvorak argued the cause for appellants (Dvorak &
Associates, attorneys; Lori A. Dvorak, of counsel and on
the briefs, and Marc D. Mory, on the briefs).
Donald F. Burke, Jr., argued the cause for respondent
(Donald F. Burke, on the brief).
Farng-Yi D. Foo, Deputy Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Gurbir S. Grewal, Attorney General, attorney;
Sookie Bae-Park, Assistant Attorney General, of
counsel, and Farng-Yi D. Foo, on the brief).
1
Jeanne LoCicero argued the cause for amici curiae
American Civil Liberties Union, American Civil
Liberties Union of New Jersey, A Better Balance,
Garden State Equality, Gloucester County NAACP,
National Council of Jewish Women, Essex County
Section, National Organization for Women of New
Jersey, New Jersey Abortion Access Fund, Planned
Parenthood Action Fund of New Jersey, Speaking of
Birth, Stanton Strong Inc., Women for Progress
(American Civil Liberties Union of New Jersey
Foundation and American Civil Liberties Union
Foundation Women’s Rights Project, attorneys;
Jeanne LoCicero, Alexander Shalom, and Gillian
Thomas, of the New York bar, admitted pro hac vice,
on the brief).
Benjamin Folkman argued the cause for amicus curiae
New Jersey Association for Justice (Folkman Law
Offices, attorneys; Benjamin Folkman, Eve R. Keller,
Sarah Slachetka, and Lauren M. Law, on the brief).
Thaddeus P. Mikulski, Jr., submitted a brief on behalf
of amicus curiae National Employment Lawyers
Association of New Jersey (Thaddeus P. Mikulski, Jr.,
on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
This appeal presents our first opportunity to consider the New Jersey
Pregnant Workers Fairness Act (PWFA), L. 2013, c. 220 -- legislation
designed to afford specific protections in the workplace for pregnant and
breastfeeding women.
2
Plaintiff Kathleen Delanoy, a police officer, brought this pregnancy
discrimination claim under the PWFA against her employer, the Township of
Ocean, only to have the action dismissed on a motion for summary judgment.
The Appellate Division, in a published opinion that reviewed this relatively
new legislation, as well as its background and import, vacated the summary
judgment ruling in defendants’ favor and remanded the matter to the trial
court. Delanoy v. Township of Ocean, 462 N.J. Super. 78, 83-84 (App. Div.
2020).
We agree that Delanoy’s claim should not have been dismissed and
therefore affirm the Appellate Division’s judgment. More importantly, we
concur in the Appellate Division’s illumination of the PWFA as providing
multiple theories on which a claim may be based. In affirming substantially
for the reasons contained in the thoughtful opinion authored by Judge
Sabatino, we write, to the extent necessary, to provide further exposition on
the implementation of this new statutory remedy for pregnant and
breastfeeding women seeking fair treatment and reasonable accommodation in
order to maintain their position in the workplace.
I.
As the Appellate Division notes, the PWFA amended existing portions
of the New Jersey Law Against Discrimination (LAD) by including
3
“pregnancy or breastfeeding” as a protected classification within existing LAD
prohibitions or protections, see N.J.S.A. 10:5-12(a), (b), (c), (f), (h), (k), (o)
(i), (l), and (m), and added an entirely new section, subsection (s), which
elaborates on an employer’s obligations to a pregnant or breastfeeding
employee, see N.J.S.A. 10:5-12(s). Delanoy, 462 N.J. Super. at 92-94.
As the Appellate Division recounted, the Legislature enacted the PWFA
in response to the decision in Young v. United Parcel Service, Inc., 707 F.3d
437, 446 (4th Cir. 2013), which brought national attention to the rights of
pregnant workers when the Court of Appeals for the Fourth Circuit held that a
pregnant employee was not “disabled” within the meaning of Title VII of the
Civil Rights Act of 1964. Although the United States Supreme Court
overturned the Fourth Circuit’s holding, it “did not adopt the plaintiff’s
argument that federal law requires employers, absent disparate treatment of
pregnant employees, to provide reasonable accommodations that can enable
such pregnant workers to continue to work.” Delanoy, 462 N.J. Super. at 91
(citing Young v. United Parcel Service, Inc., 575 U.S. 206, 219-20 (2015)).
Between the time of the Fourth Circuit’s decision and the issuance of the
United States Supreme Court’s opinion, our Legislature passed the PWFA,
which is one of the first and most expansive pieces of new legislation
affirmatively protecting pregnant and breastfeeding workers. See id. at 90-91.
4
With that background in mind, the Appellate Division’s analysis of the
PWFA focused on subsection (s), which provides, in pertinent part, that
[i]t shall be an unlawful employment practice, or, as the
case may be, an unlawful discrimination . . . [f]or 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.
[N.J.S.A. 10:5-12(s).]
The subsection continues, requiring employers, on request, to provide pregnant
workers with reasonable accommodation so they can perform their job
functions:
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 an 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.
5
[Ibid.]
The provision lists its own set of factors to be considered when an employer
claims undue hardship if required to provide a pregnant or breastfeeding
employee with a reasonable accommodation. Ibid. (factors detailed infra).
Additionally, the subsection prohibits employers from penalizing an
employee for requesting or receiving the statutorily required accommodation:
The employer shall not in any way penalize the
employee in terms, conditions or privileges of
employment for requesting or using the
accommodation. Workplace accommodation provided
pursuant to this subsection and paid or unpaid leave
provided to an employee affected by pregnancy or
breastfeeding shall not be provided in a manner less
favorable than accommodations or leave provided to
other employees not affected by pregnancy or
breastfeeding but similar in their ability or inability to
work. This subsection shall not be construed as
otherwise increasing or decreasing any employee’s
rights under law to paid or unpaid leave in connection
with pregnancy or breastfeeding.
[Ibid.]
From the above-quoted language in subsection (s), and the Legislature’s
stated public policy objectives in N.J.S.A. 10:5-3.1, the Appellate Division
derived legislative intent to recognize under the PWFA 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
6
pregnant or breastfeeding employee (subject to the employer’s claim of undue
hardship, separately explained in the subsection); and 3) illegal penalization of
a pregnant or breastfeeding employee for requesting an accommodation. See
Delanoy, 462 N.J. Super. at 91-92.
We examine all three identified causes of action and their application in
this matter,1 after briefly recounting the factual and procedural settings that
gave rise to this appeal. 2
II.
Plaintiff Delanoy had served since 2003 as a police officer employed by
the Township of Ocean when she filed the instant complaint. She was one of
three female police officers in a police force of over fifty officers.
In April 2011, Delanoy informed the then-Chief of Police, Antonio
Amodio, that she was pregnant and would be unable to perform her typical
assignment. He initially advised Delanoy that the Township did not have a
light-duty assignment for pregnant police officers; however, later that year,
1
As this case focuses on a pregnant employee, we hereinafter generally
shorten our references when discussing the new law to “pregnant employees.”
That shortened reference should not be interpreted to exclude breastfeeding
employees from the operation of the PWFA as we expand on it in this opinion.
2
Because the appeal in this matter arose from the award of summary
judgment to defendants, the facts as succinctly summarized are presented in a
light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995).
7
Chief Amodio issued two Standard Operating Procedures (SOPs), one for
Maternity Assignment and one for Light/Modified Duty.
The two SOPs were substantially similar, with both providing an option
for light-duty work. The Maternity SOP applied to pregnant officers, and the
Light Duty SOP applied to non-pregnant injured officers. Both SOPs required
a doctor’s note recommending light duty, and both required that officers use
all their accumulated paid leave time as a condition of the light-duty
assignment. The date that an officer would have to begin using available leave
time was calculated by applying the officer’s accumulated leave backwards
from the officer’s projected return-to-duty date.
The SOPs had two important differences. First, under the Maternity
SOP, the projected return date had to be “no more than 45 calendar days past
the expected due date.” Under the Light Duty SOP, the doctor’s note was
required to include the projected date for the officer’s return to full duty,
which would then control. Second, under the Light Duty SOP, the police chief
had discretion to waive the exhaustion-of-accumulated-leave condition; the
Maternity SOP did not have an equivalent provision.
When deposed during discovery, Delanoy asserted that a male officer
had been granted a waiver of the accumulated-leave condition under the Light
8
Duty SOP. She also certified that another male officer similarly had that
condition waived.
On January 22, 2013, Delanoy filed her first lawsuit resulting from the
disparate SOPs, naming as defendants Chief Amodio and the Township, and
alleging violations of the LAD, N.J.S.A. 10:5-1 to -49, Title VII of the Civil
Rights Act, 42 U.S.C. §§ 2000e to 2000e-17, and the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 to 12213. Defendants removed that
action to federal district court where it was resolved in October 2015.
In 2014, however, Delanoy became pregnant again with an expected
(and, as it turned out, actual) due date of March 17, 2015. Anticipating
application of the then-existing Maternity SOP, Delanoy filed the present
action against the Township of Ocean, the current Chief of Police Steven
Peters, retired police captain Neil Ingenito, Mayor William Larkin, and
individual Township Council members (collectively, the Township).
Consistent with the practice in place under the Maternity SOP, in
September 2014, Delanoy began a light-duty assignment in which she served
until she reached the date on which the Township required her to use her
9
available leave time.3 While serving on light-duty assignment, Delanoy
informed her supervisors that her pregnancy prevented her from carrying a gun
or defending herself on patrol, and accordingly she was assigned to handle
records and work as a “walk-in” officer, responsible for fielding complaints
from the public.
In her September 2014 complaint, Delanoy alleged that the then-existent
SOPs and the Township’s treatment of her violated the LAD as amended by
the PWFA, N.J.S.A. 10:5-12, the New Jersey Civil Rights Act, N.J.S.A. 10:6-1
to -2, and the New Jersey Constitution, N.J. Const. art. I, ¶ 1. That complaint
triggered extensive motion practice, culminating in cross-motions for summary
judgment. The trial court denied Delanoy’s motion and granted the
Township’s motion. In granting the Township’s motion for summary
judgment, the court held that the Maternity SOP as applied to Delanoy did not
violate the PWFA’s “equal treatment” mandate as a matter of law. 4
3
Although the record is unclear as to whether that date was February 25 or
March 3, 2015, it is clear that Delanoy was required to use some accumulated
leave time due to the application of the Maternity SOP to her circumstances.
4
In 2016, during the pendency of Delanoy’s second suit, Chief Steven Peters
issued a new Maternity SOP and a new Light Duty SOP. The new SOPs are
identical to each other: the 45-day provision in the former Maternity SOP was
eliminated, and the discretionary waiver provision of the Light Duty SOP was
eliminated. In response to interrogatories, Chief Peters explained that the
10
Delanoy appealed, and the Appellate Division reversed, holding that
under the PWFA, the Maternity SOP was facially invalid because it treated
pregnant employees unfavorably as compared to non-pregnant employees
subject to the Light Duty SOP; the appellate court directed the trial court on
remand to grant Delanoy’s request for declaratory and injunctive relief
concerning the SOP’s validity. Delanoy, 462 N.J. Super. at 83. The Appellate
Division left to the trial court other remedial issues related to the claim rooted
in the different and less favorable treatment of pregnant women under the
Maternity SOP. Ibid.
Further, the Appellate Division vacated the summary judgment granted
to defendants on the accommodation claims, finding that “there are genuine
issues of material fact for a jury to resolve concerning the reasonableness of
the SOP’s loss-of-leave-time condition and whether that condition is so harsh
as to comprise an impermissible penalty.” Id. at 83-84. The court stated that a
jury also had to evaluate the employer’s claim of undue hardship in
accommodating Delanoy as a pregnant police officer. Id. at 84.
SOPs were revised “in an effort to address [Delanoy’s] concerns regarding the
prior SOP’s.”
11
We granted the Township’s petition for certification, 241 N.J. 504(2020), and we were assisted by numerous amici, who also participated before
the Appellate Division.
II.
As noted, the Appellate Division perceived three distinct causes of
action within subsection (s): 1) unequal or unfavorable treatment; 2) failure to
accommodate; and 3) unlawful penalization. We will address each, in turn.
However, we note at the outset that Delanoy’s complaint did not
specifically identify those causes of action as distinctly as they are now being
argued. Moving forward, we instruct plaintiffs -- and their attorneys --
bringing claims under subsection (s) of the PWFA to identify the theories on
which their causes of action rely. Providing that rather minimal level of clarity
about the asserted objectionable behavior will facilitate enforcement of the
PWFA’s goals and promote litigation economy and efficiency when a plaintiff
seeks enforcement of a statute, like the PWFA, that contemplates various
forms of protected conduct. At the very least, counsel should provide
clarification, ensuring identification of the bases of the action and,
consequently, the defenses thereto during pretrial exchanges. Cf. Chiofalo v.
State, 238 N.J. 527, 544 (2019) (identifying a similar preferred practice in
12
CEPA actions to clarify the nature of the statutory or other premise on which a
claimed whistleblowing violation is based).
A.
The Appellate Division derived an “unequal treatment” cause of action
from the first sentence of subsection (s), which prohibits an employer from
treating, “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.”
Delanoy, 462 N.J. Super. at 92-93 (quoting N.J.S.A. 10:5-12(s)). After
recognizing that claim, the appellate court determined that Delanoy had
presented a valid facial challenge to the Maternity SOP but that further fact -
finding was needed on the issue of whether Delanoy was treated disparately
through the manner in which her modified assignment was implemented. Id. at
96-98. We consider both the Appellate Division’s recognition of the claim and
the contours of its judgment on that claim.
1.
The Appellate Division’s conclusion that the PWFA includes an
“unequal treatment” claim for pregnant employees is sensible, rooted as it is in
a plain, common-sense application of the terms of subsection (s). See N.J.S.A.
13
1:1-1 (“In the construction of the laws and statutes of this state . . . words and
phrases shall . . . be given their generally accepted meaning, according to the
approved usage of the language.”).
Further indicia about the reach of an unfavorable-treatment claim
advanced by a pregnant or breastfeeding employee may also be found from a
contextual analysis, viewing the totality of new language inserted into the
LAD by the PWFA. See Spade v. Select Comfort Corp., 232 N.J. 504, 515
(2018) (“We construe the words of a statute ‘in context with related provisions
so as to give sense to the legislation as a whole.’” (quoting N. Jersey Media
Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 570 (2017))).
The prohibition against unfavorable treatment contained in subsection
(s) appears to reinforce the import of the insertion of “pregnant or
breastfeeding” into other pre-existing protective subsections of N.J.S.A. 10:5-
12. Subsection (a), for example, now prohibits refusing to hire or employ;
discharging or forcing to retire; or treating discriminatorily in pay or in terms
and conditions of employment, an individual based on pregnancy. N.J.S.A.
10:5-12(a).
Traditional principles of statutory construction require courts to give
meaning to all words used in a statute, for example, to avoid treating the
Legislature’s language as mere surplusage. See, e.g., Brugaletta v. Garcia, 234
14
N.J. 225, 248 (2018). Thus, we would not view subsection (s) as preventing
only unfavorable workplace treatment that duplicates the prohibited hiring and
firing or other discriminatorily impactful actions listed in subsection (a). A
meaningful and fair reading of the new language of subsection (s) requires that
it be recognized as intended to provide a broader swath of protection against
unfavorable treatment of pregnant or breastfeeding employees that may not
strictly fall within the other categories of unlawful employment practices listed
in subsection (a).
2.
With that perspective in mind, it is apparent that the Maternity SOP
applied to Delanoy was facially 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.5 The Light Duty SOP
provided for a waiver of the accumulated-leave condition, and the Maternity
5
As noted, in 2016, a new Maternity SOP and a new Light Duty SOP were
adopted for use in the Township, eliminating the facial differences between the
two in force when Delanoy became pregnant with her second child. We
express no view on the merits of the subsequently created SOPs. However, the
adoption of those latter SOPs does not render moot Delanoy’s present
challenge. See City of Mesquite v. Aladdin’s Castle Inc., 455 U.S. 283, 289
n.10 (1982) (“Mere voluntary cessation of allegedly illegal conduct does not
moot a case; if it did, the courts would be compelled to leave ‘[the] defendant .
. . free to return to his old ways.’” (alteration in original) (quoting United
States v. W.T. Grant Co., 345 U.S. 629, 632 (1953))).
15
SOP did not. Therefore, on its face, the Maternity SOP constituted a per se
violation of the PWFA’s prohibition of unfavorable treatment of pregnant
employees.
We accordingly affirm the Appellate Division’s reversal of the trial
court’s denial of partial summary judgment to Delanoy on her facial challenge.
By enacting a facially unfavorable policy, the Township violated the PWFA,
and Delanoy was entitled to partial summary judgment on her request for that
declaratory and injunctive relief, as the Appellate Division properly
recognized.
Unlike the Appellate Division, however, we see no question that requires
resolution, on remand, concerning whether the Maternity SOP was applied in a
discriminatory way for purposes of Delanoy’s unequal-treatment claim.
Implemented according to its very terms, the policy was perforce applied to
Delanoy in a discriminatory way by the Township. Thus, with respect to
Delanoy’s claim of unfavorable treatment, we remand for a jury to decide only
causation and damages. That will entail review of the days she was forced to
sacrifice at the front and back end of her light-duty assignment under the
Maternity SOP. She claims she was forced to use accumulated leave, and to
leave early, by reason of the application of the discriminatory Maternity SOP.
16
B.
The Appellate Division also found statutory authority for a reasonable-
accommodation claim by an employee under the PWFA. So do we. However,
we view the statutory reasonable-accommodation claim under the PWFA in a
conceptually different manner than that expressed by the Appellate Division.
1.
In announcing a statutory reasonable-accommodation cause of action for
pregnant employees, the Appellate Division derived elements for that PWFA
claim from case law that has developed to govern a claim for failure to
accommodate a disability under the LAD, stating
a plaintiff in an LAD disability case alleging an
employer’s failure to provide reasonable
accommodation must establish these elements: “(1) the
plaintiff had a disability; (2) the plaintiff was able to
perform the essential functions of the job; (3) the
employer was aware of the basic need for an
accommodation; and (4) the employer failed to provide
a reasonable accommodation.”
[Delanoy, 462 N.J. Super. at 99 (quoting Royster v.
State Police, 227 N.J. 482, 500 (2017)).]
The Appellate Division then held Delanoy met the first three elements and that
a factual dispute existed as to the fourth. Id. at 99-104.
Additionally, the Appellate Division recognized a factual dispute as to
whether removing the accumulated-leave requirement of the Maternity SOP
17
would constitute an undue hardship for the Township. Id. at 105-06. The
court noted that the final paragraph of subsection (s) sets forth the factors for
consideration when an employer claims undue hardship for subsection (s)
purposes. Ibid. That paragraph provides:
For the purposes of this subsection, 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.
[N.J.S.A. 10:5-12(s).]
In response to the Appellate Division’s incorporation of the case law
standard for a disability accommodation claim, the Township advances two
arguments before this Court. First, it maintains that it was not required to
provide a reasonable accommodation to Delanoy because she was unable to
perform an essential function of the job: carry and fire a gun. Thus, the
Township contends that Delanoy’s claim failed on the proof of the second
element for an accommodation claim. Second, and aligned with the argument
18
that the Township was under no obligation to provide a reasonable
accommodation to a pregnant police officer who could not carry out the
essential duties of the position, the Township maintains that the Maternity SOP
was not an accommodation at all. Pressed, the Township asserts that the
Maternity SOP constitutes merely a gratuitous offer to its pregnant employees
to perform light-duty work in exchange for exhausting their accumulated leave
time.
With respect to that seeming inconsistency in the Township’s position
about the Maternity SOP, the Appellate Division rejected the “no duty to
accommodate” argument6 and noted that case law had recognized a
“conceptual distinction” between “an accommodation that is temporary in
nature . . . versus a permanent accommodation.” Id. at 100-02 (citing Raspa v.
Off. of Sheriff of Gloucester, 191 N.J. 323, 340 (2007)). The court concluded
from that case law that a temporary accommodation such as light-duty work
6
To the extent that the Appellate Division commented on the “loss-of-leave-
time policy” as raising a question of the reasonableness of this accommodation
for a pregnant worker that the jury should evaluate, see Delanoy, 462 N.J.
Super. at 102-04, we disagree for the reasons already expressed when
explaining that the Maternity SOP is unequal in treatment and facially invalid.
Further, to the extent that plaintiff raises the separate question of
whether an employer’s hinging of a pregnancy accommodation on the loss of
accumulated leave time constitutes a penalty, which is separately prohibited
under subsection (s), we discuss that hereinafter. See infra Section II.C. The
penalty issue is one that should be presented to the jury on remand.
19
may be required -- even when the employee cannot perform essential functions
of her job -- while a permanent accommodation of similar light work would
not. Ibid. The Appellate Division then found support for that conclusion in
the PWFA, pointing to the reference to “temporary transfers to less strenuous
or hazardous work” as an example of a reasonable accommodation for a
pregnant employee. See N.J.S.A. 10:5-12(s). Accordingly, the Appellate
Division held that the statute “contemplates that female workers near the end
of their pregnancies may temporarily be unable to perform certain essential
physical tasks inherent in their regular jobs, but nonetheless have a right to
obtain” an accommodation. Id. at 101.
2.
Although we agree that plaintiff advanced a viable reasonable
accommodation claim against her employer, we root our analysis in the
statutory direction of subsection (s), which calls for its own analytic structure.
In our view, the Appellate Division mistakenly viewed the subsection (s)
obligation concerning reasonable accommodation as equivalent in approach to
all other disability accommodation claims, relying on case law that has over
the years incorporated federal principles and developing administrative
regulations geared toward the great variety of accommodation claims that arise
for persons who are disabled. Indeed, the elements for disability
20
accommodation have developed with the recognition that “the LAD statute
does not specifically address failure to accommodate” a disability. Royster,
227 N.J. at 499. However, as amended by the PWFA, the LAD now does
specifically address pregnancy accommodation. Accordingly, we eschew the
Appellate Division’s approach and hew closely to the precise, procedurally
clear, and detailed protections that the Legislature has provided to pregnant
and breastfeeding employees under subsection (s).
In the first paragraph of subsection (s), the PWFA makes reasonable
accommodation an employer obligation when, for needs related to the
pregnancy, an employee, based on the advice of her physician, requests the
accommodation. That same paragraph then lists examples of what constitutes
a reasonable accommodation, including “temporary transfers to less strenuous
or hazardous work,” as well as job restructuring. Because subsection (s) is
designed specifically for persons who are already employees performing the
duties of their job, and who become pregnant and request an accommodation
based on a physician’s advice, a pregnant employee in such circumstances has
a statutory right to reasonable accommodation. N.J.S.A.10:5-12(s).
Subsection (s) does, however, permit employers to claim an undue
hardship exemption from their statutory obligation to accommodate pregnant
employees in the workplace. N.J.S.A. 10:5-12(s) states that reasonable
21
accommodation is statutorily required “unless the employer can demonstrate
that providing the accommodation would be an undue hardship on the business
operations of the employer.” (emphasis added). The statute accordingly
establishes undue hardship as an affirmative defense to a failure-to-
accommodate claim. Importantly, absence of undue hardship is not an element
of a plaintiff employee’s prima facie case; rather, the presence of undue
hardship is an affirmative defense as to which the employer carries the burden
of proof.
As noted, the final paragraph of subsection (s) identifies the factors to
consider when determining whether a proposed accommodation would, in fact,
constitute an undue hardship for the employer. The last factor listed is “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.” Ibid. That factor is rich in meaning. Certainly, it seems to
suggest that the waiver of a “tangential or non-business necessity requirement”
would not qualify as an undue hardship.
But also implicit in that legislative expression is an acknowledgment
that a temporary waiver of an essential function does not automatically rise to
the level of “undue hardship.” Indeed, the factor calls for an analysis of “the
extent to which” an essential requirement might be waived during the
22
temporary period of the reasonable accommodation. With the burden shifted
to the employer for that inquiry, the employer is in the best position to present
proof about the size and composition of the employer, its facilities, budget,
workforce, and operations. If the employer can produce proofs raising a
genuine question about the undue hardship of such a temporary
accommodation (i.e., waiver of an essential job function as part of a light-duty
assignment) when viewed in that larger context of information, then the issue
is presented to the jury for resolution.
That statutory language can be contrasted with language chosen by the
Legislature in subsection (q) of N.J.S.A. 10:5-12, which requires employers to
reasonably accommodate an employee’s sincerely held religious practices and
observances, provided the employer cannot demonstrate such an
accommodation would constitute an undue hardship. That provision lists a set
of factors, distinct from those in subsection (s), for determining whether an
accommodation constitutes an undue hardship. N.J.S.A. 10:5-12(q)(3)(b).
Absent from those factors in subsection (q) is whether the accommodation
would require the employee to forego an essential function of her position.
Rather, after listing the factors, subsection (q) provides that “[a]n
accommodation shall be considered to constitute an undue hardship if it will
23
result in the inability of an employee to perform the essential functions of the
position in which he or she is employed.” N.J.S.A. 10:5-12(q)(3)(c).
Subsection (s) must be read in context with the statutory scheme of
which it is a part, and that includes subsection (q). See DiProspero v. Penn,
183 N.J. 477, 492 (2005). “We must ascribe to the Legislature a reason for
using different language in separate provisions of the same statute.” State v.
Ferguson, 238 N.J. 78, 102 (2019). In subsection (q), an accommodation
automatically constitutes an undue hardship if the employee cannot perform
essential functions of her job. See N.J.S.A. 10:5-12(q)(3)(c). Conversely,
subsection (s) lists whether the employee can perform an essential function of
her job merely as a factor to be considered when assessing an employer’s
defensive assertion of undue hardship. That difference supports our perception
of a legislative intent to make a pregnant employee’s temporary inability to
perform an essential function of her job merely one factor among many others
to assess. Stated otherwise, it supports legislative intent to place
comparatively less weight on an employee’s temporary inability to perform an
essential function of her job in the pregnancy-accommodation context
compared to other accommodation claims.
We now hold that a claim for failure to accommodate a pregnant or
breastfeeding employee under the PWFA requires the plaintiff to prove three
24
elements: 1) the plaintiff employee must be pregnant or breastfeeding; 2) the
plaintiff employee must request reasonable accommodation, as prescribed by
subsection (s), so that the employer knows or should know of the plaintiff’s
need for an accommodation; and 3) the employer must fail to provide a
reasonable accommodation. It is the employer’s burden to prove, as an
affirmative defense, that providing a reasonable accommodation causes an
undue hardship. In that regard, if the employer raises an issue concerning the
employee’s ability to perform an essential function of the job, that must be
addressed in the context of the undue hardship affirmative defense. The
PWFA’s protection of pregnant employees requires that the defendant
employer produce proof that the employee cannot fulfill an essential function
of her employment and, if so, that her continued employment with the
accommodation is an undue hardship for the employer. And, when the
defendant satisfies that production-of-proof obligation, then the issue becomes
a factual determination for the jury. The jury will consider the contested point
about the employee’s temporary inability to perform an alleged essential job
function as one of several factors to be considered, in their totality, when
assessing whether the employer has proved that the nature of the employer’s
business operations renders it an undue hardship to provide a reasonable
25
accommodation that entails a temporary waiver of an essential function of a
job.
In sum, the PWFA may require, in specific circumstances, that an
employer provide a reasonable accommodation that entails temporarily
permitting a pregnant employee to transfer to work that omits an essential
function of her job.
3.
Here, the Township’s argument, as it relates to the burden of showing an
undue hardship, founders. The Township has failed to produce any proof to
date to sustain its claim that Delanoy cannot perform an essential function of
her job, which is the primary factor it argues when claiming an undue
hardship. Despite asserting a legal requirement that a police officer must wear
a gun while on duty, the Township has not pointed to any authority to prove
that carrying a gun is an essential function for all police officers. That
question went unanswered at oral argument and remains unaddressed.
However, if the Township on remand does produce support for its
assertion that carrying a gun is an essential function of the job, that would not
necessarily end Delanoy’s claim for reasonable accommodation. Delanoy’s
inability to carry a gun would constitute a factor to be considered in
26
determining whether a reasonable accommodation that waived that
requirement would constitute an undue hardship on the Township.
Delanoy has alleged that, while pregnant, she sought an accommodation
for her pregnancy, consistent with her doctor’s advice and the PWFA’s
requirements, and was offered light duty under the Maternity SOP -- a policy
we have determined to be facially invalid under the PWFA because it provided
unequal treatment to pregnant employees compared to what the Light Duty
SOP offered to non-pregnant police officers. Accordingly, Delanoy met the
statutory criteria for her failure-to-accommodate claim under subsection (s) of
the PWFA. The Township knew or reasonably should have known that
Delanoy required an accommodation for her pregnancy and failed to provide
that reasonable accommodation. Regardless of whether Delanoy can carry a
gun, she has met her burden for a prima facie accommodation claim under
subsection (s) of the PWFA.
We remand to the trial court for it to first determine whether the
Township will come forward with proof of its claim of undue hardship. The
trial court did not address the issue of undue hardship when this matter first
came to that court. The court will now have to assess whether and what proof
the Township has to advance on its claim of undue hardship. If the Township
presents such proof, and if that proof raises a genuine issue on the subject to
27
the trial court’s satisfaction, then the trial court should refer the disputed issue
of undue hardship to a jury.
C.
Finally, the Appellate Division held that subsection (s) prohibits
“penalizing” a pregnant employee who seeks an accommodation. The
Appellate Division interpreted that prohibition to mean that the statute
disallows “employer-imposed conditions on accommodations that are
especially harsh.” Delanoy, 462 N.J. Super. at 104-05 (recognizing retaliatory
behavior as also implicitly prohibited as a penalty). The Appellate Division
“refer[red] the subject to the Model Civil Jury Charge Committee to develop
an appropriate jury instruction on the subject.” Id. at 105.
1.
We agree with the Appellate Division’s descriptions of the cause of
action for unlawful penalization. We add the following. Penalization is
plainly identified in subsection (s) as an independent cause of action. The
Legislature meant it to have its own teeth in promoting the public policy in
favor of having employers welcome the continuing presence of pregnant and
breastfeeding employees in their workplaces.
Accordingly, in our view, the Attorney General and several amici make
sound arguments that a viable claim of illegal penalty may arise when
28
conditions of a designated accommodation are made particularly harsh. Such
grudging “compliance” with the will of the Legislature should be deterred, and
it would be deterred if recognized to be its own form of an improper penalty.
Separately, a viable claim of penalty may arise if the pregnant employee’s
request for an accommodation triggers a hostile work environment against that
employee. We think all of the contemplated forms of penalty should be
considered when a model jury charge is fashioned in this new area.
2.
Here, Delanoy alleged two possible ways to view the Township’s
response to her as a penalty. First, she contends that the accumulated leave
condition of the Maternity SOP may constitute an unreasonably harsh
condition of accommodation because it forced her to lose accumulated leave in
order to secure a light-duty assignment. It is for a jury to decide whether that
condition was so harsh as to constitute a penalty.
Second, as noted by the Appellate Division, Delanoy also alleges that
she was unfairly assigned to “walk-in” duty and was otherwise treated
detrimentally after requesting an accommodation. Delanoy, 462 N.J. Super. at
97-98. As explained earlier, this alleged detrimental treatment was not
germane to Delanoy’s facial, SOP-based claim of unequal treatment. It is,
however, relevant to her claim of penalization. As with the accumulated leave,
29
this second issue must be resolved by a jury on remand, for only it can
determine whether the assignment to “walk-in” duty and the other alleged
detrimental treatment was for Delanoy a penalty.
III.
For the reasons expressed, the judgment of the Appellate Division
reversing the grant of summary judgment to defendants is affirmed, as
modified by this opinion.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and PIERRE-LOUIS join in JUSTICE
LaVECCHIA’s opinion.
30