Delanoy v. Township of Ocean, 462 N..J. Super. 78 (App. Div. 2020). The first New Jersey state court published opinion of 2020 goes to Judge Sabatino. The case arose under the Pregnant Workers Fairness Act (“PWFA”), a 2014 amendment to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12(s). Judge Sabatino observed that the statute “ha[d] yet to be construed in a published opinion” before the Appellate Division’s decision here.
As Judge Sabatino summarized it (though he of course followed up with more detail), the PWFA “obligates employers, subject to an undue hardship exception, to provide reasonable accommodations in the workplace to pregnant women upon their request, and to not penalize such women because of their pregnant status.”
Plaintiff, a police officer, had become pregnant. She asked for a transfer to a “light-duty” or other less strenuous position in the Ocean Township Police Department. The Township had a “Maternity Assignment Standard Operating Procedure” that allowed for a maternity assignment but that, unlike the protocol for non-pregnant injured workers, required pregnant women to use up all their paid leave time, such as vacation, personal, or holiday days, before taking the lighter duty assignment. The Maternity SOP also differed from the policy for other workers going on lighter duty in that the latter allowed the Police Chief to waive the loss of paid leave time, while the Maternity SOP did not.
Plaintiff sued for violation of the PWFA. Both sides moved for summary judgment. The Law Division granted defendant’s motion. Plaintiff appealed, and the Appellate Division reversed. The panel applied de novo review, and noted that the views of the Attorney General, an amicus curiae who supported plaintiff, were entitled to “due deference” since the Attorney General is “the legal adviser to State Government” and because of the Attorney General’s “institutional role in enforcing the [Law Against Discrimination] and in overseeing the Division of Civil Rights.”
Judge Sabatino held that the Maternity SOP “unlawfully discriminates against pregnant employees as compared to nonpregnant employees who can seek and potentially obtain a waiver from the Police Chief. Such nonequal treatment violates the PWFA.” Accordingly, the Appellate Division not only reversed the summary judgment in favor of the Township, it “uph[e]ld plaintiff’s facial challenge to those uneven policies and direct[ed] the trial court to grant her discrete requests for declaratory and injunctive relief, leaving other remedial issues to the trial court.” As to the other issues, genuine issues of material fact required a trial.
Judge Sabatino’s opinion offers a thorough analysis of the facts, the history and purpose of the PWFA, the statute’s “equal treatment” and “reasonable accommodation” mandates and its ban on a “penalty” against pregnant women, as well as the “undue hardship” exception contained in the law. The opinion then goes painstakingly through the analysis of the legal issues based on the facts here. It is well worth reading in full.
As this is the first published opinion about the PWFA, a petition for certification to the Supreme Court may be the next case event. Whether the Court would intervene now, or wait until after a trial (or whether the case might settle, thus obviating the need for Supreme Court review) is an open question.