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Friday, February 19, 2016

NJ Workers Gain Protections Against Terminations for Pregnancy

Under the  New Jersey Pregnant Worker's Fairness Act (PWFA), the New Jersey Legislature added "pregnancy" to the protected list of classes under the New Jersey Law Against Discrimination  (LAD).  An employer's adverse actions based on the pregnancy of employee became explicitly prohibited under the PWFA, New Jersey Law Against Discrimination pregnancy amendments. Prior to these amendments to the statute, female plaintiffs who brought employment discrimination cases based on pregnancy, had to rely upon other protected classes under the statute to bring their lawsuit, i.e., they had to allege discrimination based on the protected classes of disability, gender, or sex. Any ambiguity as to whether workplace pregnancy discrimination was prohibited under the statute was eliminated by explicitly adding the protected class of "pregnancy" in three subsections in the statute, subsections (a), (l) and (s).

The full breadth of the protection of these new amendments is finally being felt as employees and employers become aware of the new law. The New Jersey Law Against Discrimination (LAD) including the amendments mandated by the PWFA applies,  to all New Jersey employers, regardless of their size, unlike the federal statutes governing pregnancy discrimination. 

             The LAD, Subsection (a) now prohibits an employer from discriminating against an individual in terms, conditions or privileges of employment explicitly on the basis of pregnancy and further prohibits employers from refusing to hire employees based on pregnancy:

N.J.S.A. 10:5-12 (a):      It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

      (a)     For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer, to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment N.J.S.A. 10:5-12 (a). 

This amended statute in Subsection ( l ) also makes it illegal to discriminate explicitly on the basis of pregnancy in the course of any contractual relationship. Employment lawsuits that are brought because of discrimination in forming contracts because of pregnancy are sometimes referred to as "Subsection ( l )" lawsuits.  

N.J.S.A. 10:5-12 (l)      It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

( l. )    For any person to refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person on the basis of the race, creed, color, national origin, ancestry, age, pregnancy, sex, gender identity or expression, affectional or sexual orientation, marital status, civil union status, domestic partnership status, liability for service in the Armed Forces of the United States, disability, nationality. . . . .  N.J.S.A. 10:5-12( l). 

In Subsection (s ) the amended statute, the LAD further expanded the breadth of a pregnant worker's protection by defining the class of protected workers as to mean pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth. 

The most significant changes in the 2014 LAD pregnancy amendments are the two new requirements in Subsection "(s)":  that employers are now required to reasonably accommodate employees affected by pregnancy regardless of whether they have an LAD disability or whether the requested accommodations are necessary. This is similar to as reasonable accommodations for disabled persons and is a major change in the statute. Employers now must make reasonable accommodations for the pregnant woman, much like the Americans with Disabilities Act and the LAD require employers to make reasonable accommodations for employees with disabilities.

Additionally, Subsection (s)  further expand the rights of pregnant employees by requiring a " should know" responsibility factor of the employer. Even if the pregnant employee does not specifically ask for a reasonable accommodation ( many pregnant women are hesitant  to ask their employer for an accommodation, fearing they will be fired for doing so), the employer has a duty to treat the employee that the employer should know is pregnant,  in a manner similar to other employees who are not pregnant but are disabled

The LAD mandates in Subsection (s):  

N.J.S.A. 10:5-12 (s)      It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

For an employer to treat, for employment-related purposes, a woman employee that the employer knows, or should know, is affected by pregnancy in a manner less favorable than the treatment of other persons not affected by pregnancy but similar in their ability or inability to work. 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, unless the employer can demonstrate that providing the accommodation would be an undue hardship on the business operations of the employer. 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 shall not be provided in a manner less favorable than accommodations or leave provided to other employees not affected by pregnancy 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.

For the purposes of this section "pregnancy" means pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth.

Whether the required or requested accommodations are “reasonable" for any particular employer is whether an accommodation would impose undue hardship on the operation of an employer's business. This is fact sensitive. Some of the factors to be considered  in determining whether an accommodation would impose undue hardship on the operation of an employer's business, include:

• the overall size of the employer's business with respect to the number of employees; 

• number and type of facilities;

• the type of the employer's operations;

• the composition and structure of the employer's workforce;

• other essential business necessities that cannot be adjusted for in some other manner

If you feel you have been terminated from your job or that you have been harassed because you are pregnant, it is essential for you to contact an experienced, competent and compassionate employment discrimination attorney who will be aggressive about enforcing your rights.

Every situation is fact specific, and if you are a person who believes you may be the victim of the employer's discrimination, or if you were terminated and believe that retaliation for asking for an accommodation for pregnancy or disability may have been a factor, please contact Hope A. Lang, Attorney at Law, today for a free consultation.



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