Appellate Division Provides First Analysis of the Pregnant Workers Fairness Act

On January 3, 2020, the Appellate Division reversed in part the Law Division’s order granting summary judgment to the Ocean Township Police Department in a pregnancy discrimination lawsuit filed by Kathleen Delanoy.  By writing for the three-judge panel, Judge Jack Sabatino became the first judge to provide substantive analysis regarding the Pregnant Workers Fairness Act (“PWFA”), N.J.S.A. 10:5-12(s).  This law, effective as of January 17, 2014, provides for the equal treatment of pregnant and breastfeeding employees and requires employers to provide them reasonable accommodations without penalty unless doing so would place an undue burden on the employer.

Delanoy alleged that, after she discovered she was pregnant with her second child, she informed her employer that her doctor recommended she be taken off active patrol.  The Department’s maternity protocol required pregnant patrol officers to use all of their paid leave time prior to taking a non-patrol assignment.  In contrast, injured officers seeking non-patrol duty could seek a waiver of the paid leave forfeiture from the Chief of police, an option unavailable to pregnant officers.  Delanoy brought suit, claiming the Department’s policy disfavored pregnant women in violation of the PWFA.

Judge Sabatino, writing for a unanimous panel consisting of Judges Sumners and Geiger, identified four distinct mandates that the PWFA imposes: (1) it prohibits the unequal treatment of pregnant women, (2) requires employers to provide pregnant workers reasonable accommodations (such as bathroom and water breaks, modified work schedule, or temporary transfers from hazardous work) when requested, (3) mandates that employers must not penalize pregnant workers for requesting a reasonable accommodation, and (4) allows employers an exception where providing a reasonable accommodation would impose an undue burden.

Applying the “equal treatment” mandate to Delanoy’s case, the Appellate Division held the Department treated pregnant women unequally because they were not afforded the same waiver option that injured patrol officers were given.   Although the Department argued that the waiver would not have applied to Delanoy or other officers at her rank in fact, because the two policies facially treated injured patrol officers and pregnant officers unequally, they violated the PWFA’s prohibition of unequal treatment. 

Further, turning to the employer’s obligation to provide a reasonable accommodation, the Department argued that because Delanoy admitted that, in the latter stages of her pregnancy, she would not be able to perform the essential job functions of a patrol officer, she was not entitled to a reasonable accommodation.  The Appellate Division rejected this argument, determining that employers are so obligated despite a pregnant woman’s inability to perform the work of a police officer in the latter stages of the pregnancy.  In so holding, the Appellate Division analogized pregnancy as a short-term inability to perform essential job functions, stating that a light-duty accommodation is not intended as a permanent change but merely a temporary bridge between an inability to work and a return to full employment status.

The Appellate Division remanded the matter to the trial court for determinations as to whether the accommodation provided to Delanoy was reasonable, whether the paid leave time forfeiture constituted a “penalty” under the PWFA, and whether Delanoy’s accommodation constituted an undue burden, as resolution of those issues involved questions of fact better suited for a jury.

Had Delanoy v. Ocean Township Police Department been on appeal from a jury verdict, perhaps we may have been given further guidance as to what would constitute a “penalty” under the PWFA, or whether the Department’s creation of a non-patrol position for Delanoy constituted an undue burden on the Department.  However, what Delanoy does provide is the initial substantive analysis necessary for employers to understand the PWFA and abide by its goals.

For more information regarding the implications of this case, or for LAD inquiries, please contact Jack Middough at or call (732)545-4717.