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Wednesday, November 6, 2019

I Am a NJ, Non-Tenured, Pregnant Teacher; Does My Employer Have Right to Not Renew My Contract, to Not Rehire Me for the Next Academic Year? Part II

While Boards of Education have the right to choose which non-tenured teachers will have their contracts renewed and which they refuse to renew, the refusal cannot be based on illegal reasons. Motherhood is foremost for the continuation of the species! Pregnant women should be protected and supported, not discriminated against! As explained in Part I of this series on non-tenured teachers and pregnancy, pregnant non-tenured teachers in NJ are subject to the same anti-discrimination laws as are employees in other professions. I have successfully represented pregnant, non-tenured teachers whose contracts were not renewed and succeeded in recovering money for them.

The Pregnant Women’s Fairness Act amended the New Jersey Law Against Discrimination (NJLAD) to specifically include pregnancy as a designated protected class. It states: “It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: (a) For an employer, because of........ pregnancy, .........., 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).

The Pregnant Women’s Fairness Act expanded the pregnant workers’ (which includes teachers) protection in Subsection (s ) of the amended NJLAD. Subsection (s) broadens the class of protected workers as to mean not only pregnancy and childbirth, but also includes medical conditions related to childbirth or pregnancy, including recovery from childbirth.  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 filed because of discrimination in forming contracts because of pregnancy are sometimes referred to as "Subsection (l)" lawsuits.

Employers, including school boards, are now required to reasonably accommodate employees affected by pregnancy unless the accommodation would be an undue hardship on the employer. Employers are required to provide reasonable accommodation for pregnancy regardless of whether the employee is disabled or not. Subsection "(s)" mandates that employers are now required to reasonably accommodate employees affected by pregnancy regardless of whether they have an NJLAD disability or not. School boards must make reasonable accommodations for the pregnant teachers, similar to how the Americans with Disabilities Act (ADA) and the NJLAD require employers to make reasonable accommodations for employees with disabilities.

Pregnant women may be hesitant to ask their employer for an accommodation for their pregnancy, fearing it will trigger a termination. The Pregnant Women’s Fairness Act increased the duties of employers and the rights of pregnant employees by requiring of the employer a "should know" responsibility factor. This means even if the pregnant employee does not specifically ask for a reasonable accommodation,  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 who the employer “should know” are disabled and may require an accommodation. School boards are prohibited as are other employers, from treating an employee whom the employer knows, or “should know”, is affected by pregnancy in a manner less favorable than the employer treats other employees with similar work abilities or inabilities who are not affected by pregnancy.

Prior to the Pregnant Women’s Fairness Act (PWFA), NJ employers did not have an obligation to accommodate pregnant employees who had normal, healthy pregnancies. Now, school boards must make reasonable accommodations available for female teachers affected by pregnancy (again, which is defined to include pregnancy, childbirth or medical conditions related to pregnancy or childbirth) when such employees request an accommodation based on the advice of their physicians – even if the teacher’s pregnancy is normal.

Every case is fact specific and employers are not required to provide accommodations for pregnancy and pregnancy-related conditions when doing so would be an undue hardship on the employer. Factors a court would consider include the nature and cost of the accommodation needed, the size of the employer's business, the number of employees, the composition and structure of the business.

What This Means for New Jersey Pregnant, Non-Tenured Teachers

Discrimination against employees on the basis of pregnancy was unlawful prior to the NJLAD amendments that were added by the Pregnant Women’s Fairness Act (PWFA). However, employers in New Jersey including schools are now required to consider a pregnant employee’s requests for accommodations and engage in the interactive process with such employee. Since pregnancy is now listed as its own protected class in the NJLAD, pregnant non-tenured teachers will no longer have to argue discrimination by way of sex, gender or disability in order to state a claim under the NJLAD.

Employer schools are now obligated to reasonably accommodate pregnant employees whose pregnancies are "normal," whereas prior to the PWFA, only employees disabled by their pregnancies were due reasonable accommodation under the NJLAD.

School Boards have a right to choose which non-tenured teachers will have their contracts renewed for the next academic year. Pregnancy however cannot be the basis for decision to not renew unless providing accommodations would be an undue hardship on the business operations of the employer.

Don’t Sit on Your Rights!

Motherhood is foremost for the continuation of the species! Pregnant women should be protected and supported, not discriminated against!  I have successfully represented pregnant, non-tenured teachers whose contacts were not renewed and succeeded in recovering money for them.

Termination when you are pregnant is exponentially harmful to the mother, the child and the family, because it comes at a time when the family’s economic needs are increased. If you believe you were the target of pregnancy discrimination in the workplace, or feel your employer treated you unfairly because of pregnancy, childbirth or a related medical condition, resulting in termination or a refusal to rehire, it is important to consult with an aggressive and experienced employment attorney.

If you complained about such discrimination and your employer then retaliated against you, you may also have a claim for retaliation. If you believe you are being subjected to such unlawful workplace discrimination or retaliation, please contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, and Northern NJ to meet with clients.


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