Delanoy v. Twp. of Ocean

• Decision Date: 09 March 2021
• Docket Number: A-68 September Term 2019,084022
• Citation: 246 A.3d 188,245 N.J. 384
• Parties: 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.
• Court: New Jersey Supreme Court

245 N.J. 384

246 A.3d 188

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.

A-68 September Term 2019

084022

Supreme Court of New Jersey.

Argued November 10, 2020

Decided 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).

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, Newark, 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, Cherry Hill, 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., Pennington, 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.

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, 224 A.3d 294 (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 "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, 224 A.3d 294.

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, 224 A.3d 294 (citing Young v. United Parcel Service, Inc., 575 U.S. 206, 219-20, 135 S.Ct. 1338, 191 L.Ed.2d 279 (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, 224 A.3d 294.

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.

[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 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, 224 A.3d 294.

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, 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...