On October 21, 2019, Benjamin Folkman, Esq. appeared before the Appellate Division of the Superior Court of New Jersey in the matter of Delanoy v. Township of Ocean, et al., Docket No. A-2899-17T4, arguing on behalf of amicus curiae, New Jersey Association for Justice (“NJAJ”). Attorney Eve R. Keller, Esq. drafted the brief, along with Mr. Folkman, Sarah Slachetka, Paul C. Jensen, Jr., and Lauren M. Law.
This appeal stemmed from a pregnancy discrimination case brought by a female police officer against her employer, Ocean Township, and various Ocean Township officials. Plaintiff and NJAJ contended that Ocean Township violated the New Jersey Pregnant Workers Fairness Act (“PWFA”), a statute that had not yet been interpreted in a published opinion, because it is less favorable than the light-duty assignment policy for nonpregnant officers and requires her to deplete her accumulated leave time as a condition of receiving her maternity assignment. The PWFA, effective January 17, 2014, amended the New Jersey Law Against Discrimination (“LAD”) to expressly prohibit pregnancy discrimination in the workplace. The PWFA has four distinct and important components as interpreted by the Appellate Division: “(1) language that prohibits unequal treatment of pregnant women in a variety of contexts, including the workplace; (2) provisions that require employers to provide pregnant workers, upon request, with reasonable accommodations that can enable them to perform their essential job functions; (3) a mandate that the employer must not “penalize” a pregnant worker for requesting or receiving the accommodation, and (4) an undue hardship exception to the reasonable accommodation provision.” The trial court, faced with competing summary judgment motions by both Plaintiff and Defendants dealing with, among other questions, whether the subject policy was facially discriminatory, granted summary judgment in favor of Defendants.
We are proud to report that the Appellate Division, in a published decision, agreed with Plaintiff and NJAJ and vacated the entry of summary judgment in favor of Defendants, holding that Ocean Township’s maternity policy, as written, unlawfully discriminates against pregnant employees as compared to nonpregnant employees. The Appellate Division opined that such nonequal treatment violates the PWFA, and upheld Plaintiff’s facial challenge to those policies. The Appellate Division also vacated summary judgment in Defendants’ favor with respect to the accommodation issues as it determined that there are genuine issues of material fact for a jury to resolve concerning the reasonableness of the maternity policy’s condition that the officer use all of her accumulated paid leave time in exchange for receiving a reasonable accommodation and whether that condition is an impermissible penalty.
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