The Supreme Court Addresses the Pregnant Workers Fairness Act

Delanoy v. Township of Ocean, ___ N.J. ___ (2021). As discussed here, the Appellate Division issued the first opinion regarding the Pregnant Workers Fairness Act, a component of the New Jersey Law Against Discrimination, in this case last year. The case went to the Supreme Court, and today the Court affirmed, as modified, the Appellate Division’s decision, “substantially for the reasons contained in the thoughtful opinion authored by Judge Sabatino.” The ruling was unanimous and was authored by Justice LaVecchia, who just yesterday announced that she will leave the Court in August of this year.

Justice LaVecchia’s opinion went on 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.” In certain respects, the Court’s analysis diverged from that of the Appellate Division. But the result, upholding the Appellate Division’s ruling that the plaintiff employee was entitled to partial summary judgment, was the same.

The Supreme Court’s ruling actually went further for the employee in at least one respect. Unlike the Appellate Division, Justice LaVecchia saw “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.” Accordingly, as to Delanoy’s claim of unfavorable treatment, the Court remanded for a jury to decide only on causation and damages.

The Court also provided guidance for pleading future cases under this statute. Justice LaVecchia noted, as had the Appellate Division, that the statute contained three distinct causes of action within its subsection (s), the basis for this case: “1) unequal or unfavorable treatment; 2) failure to accommodate; and 3) unlawful penalization.” She observed that plaintiff had not specifically identified those causes of action in her complaint as distinctly as they were argued before the Supreme Court. “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.” At the very least, that will help identify “the bases of the action and, consequently, the defenses thereto during pretrial exchanges.”