Pregnancy Accommodations & Discrimination Protections

—Overview—

 On January 17, 2014, Governor Chris Christie signed P.L.2013, c.220 which added language to the New Jersey Law Against Discrimination (NJLAD) to: explicitly include pregnancy as a protected class; provide that pregnant workers cannot be treated less favorably than other workers; and, require accommodations for pregnancy. This Fast Facts attempts to help employers understand the significance of these changes.

—Background—

Enacted in 1945, the New Jersey Law Against Discrimination (LAD) (N.J.S.A. 10:5-1 et seq.) prohibits unlawful discrimination in employment, housing, places of public accommodation, credit and business contracts. The employment portion of the law prohibits discrimination in connection with job-related actions like hiring, compensation, promotion, transfers, etc. It applies to all New Jersey public and private employers (except federal employers) regardless of size, making it broader than many other state and federal laws. LAD prohibits discrimination on the basis of race, nationality, 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, service in the Armed Forces, or for refusing to submit to a genetic test or make the results available to an employer.

—Accommodating Pregnancy in the Workplace—

Has pregnancy always been protected by the LAD?

Prior to January 2014, pregnancy was not specifically named in the employment context of the LAD. Nevertheless, pregnant workers were still provided with rights under the law. For instance, an employer refusing a women’s employment because of pregnancy, childbirth, or complications from pregnancy could have been liable for sex or gender discrimination. Further, the LAD provided the same rights to pregnant woman with disabilities caused by pregnancy as employees disabled for other reasons. Changes to the LAD in 2014, however, make it explicitly clear that pregnancy in and of itself is a protected classification. This classification includes pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery.

How must employers accommodate pregnant workers under the LAD?

The LAD clearly requires employers to make “reasonable accommodations” for pregnancy-related needs when requested by an employee with a doctor’s note. These accommodations include, but are not limited to: 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.  Likewise, changes to the law specifically prohibit employers from penalizing pregnant employees in terms, conditions or privileges of employment for using an accommodation. Last, employers could face discrimination charges if they know, or should know, that a woman is affected by pregnancy and the woman is treated “less favorably” than other workers not affected by pregnancy, but similar in their ability to work.

Are there any exemptions to the accommodations that must be made for pregnant workers under the law?

The law contains an exemption if a requested accommodation would cause an undue hardship on an employer. In determining whether providing an accommodation would cause a hardship, the following factors should be considered by employers (preferably in consultation with counsel):

• The overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget;
• The type of the employer’s operations, including the composition and structure of the employer’s workforce;
• The nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and,
• The extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

Does the pregnancy language in the LAD create another protected leave entitlement if the accommodation requested by an employee is time out of the office?

The language included in the LAD specifically states that it should not be interpreted as “increasing or decreasing any employee’s rights, under law, to paid or unpaid leave in connection with pregnancy.” However, this language has not been litigated by the courts. When considering granting or denying any type of leave or accommodation, employers should proceed with caution as there are a host of leave, anti-discrimination and civil rights laws that may provide protections to such employees under certain circumstances.

Are there any other changes to the LAD concerning pregnancy that employers should know?

Yes, under the language in the law, employers could face discrimination charges if they know, or should know, that a woman is affected by pregnancy and the woman is treated “less favorably” than other workers not affected by pregnancy, but similar in their ability to work.

Employers should also be aware that – upon an employee’s return to work following maternity leave – companies must provide a “suitable room or other location with privacy” for the employee to pump breastmilk (unless they can prove that doing so would be an undue hardship). The room must be in close proximity to the employee’s work area, and it cannot be a toilet stall. The state law also says employers can’t treat an employee differently than other employees simply because she is breastfeeding.

Since 2010, federal law has required companies with 50 or more employees to provide breastfeeding accommodations. New Jersey’s provision, however, applies to employers of all sizes.

—Violations of the LAD—

What penalties may an employer face for violating the LAD?

The Director of the New Jersey Division on Civil Rights has the authority to issue fines for violations of the law — up to $10,000 for a first offense, up to $25,000 for a second offense, and up to $50,000 for a third or subsequent offense. There is also no cap on the compensatory and punitive damages an employee may recover if it is found that their rights have been violated. These damages may include: injunctive relief; reinstatement; back pay; front pay; damages for pain, suffering, and humiliation; emotional distress damages; interest; and, reasonable attorneys’ fees and costs.

—Best Practices—

What are some best practices to ensure compliance with the law?

Employers should review and follow their anti-discrimination, accommodation and leave policies to ensure compliance with the law. Other best practices include, but are not limited to:

• Except when justified by a legitimate businesses necessity, treat pregnant workers the same as before and the same as other workers (bearing in mind their possible need for reasonable accommodations);
• Provide the same terms and conditions of employment as before, wherever possible;
• Except when justified by a legitimate business necessity, evaluate pregnant workers the same as other workers in job-related actions like hiring, compensation, promotion, transfers, etc; and,
• Avoid making changes to the hours of work or responsibilities of a pregnant worker unless there are health and safety reasons or a compelling business interest.

—For more information—

If you need additional information, please contact NJBIA’s Member Action Center at 1-800-499-4419, ext. 3 or member411@njbia.org.

This information should not be construed as constituting specific legal advice.  It is intended to provide general information about this subject and general compliance strategies.  For specific legal advice, NJBIA strongly recommends members consult with their attorney.