NEW JERSEY PROHIBITS PREGNANCY DISCRIMINATION

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (the “LAD”), prohibits discrimination, harassment and retaliation in the workplace based upon a number of protected characteristics, including sex or gender. Discrimination on the basis of pregnancy has long been recognized as a form of “sex” discrimination because only one “sex” can get pregnant – females. However, in 2014, the New Jersey Legislature endeavored to further reinforce the protections afforded to pregnant women and breastfeeding mothers with passage of the Pregnant Workers Fairness Act (the “PWFA”).

Within the express wording of the PWFA, the New Jersey Legislature pronounced the following findings and declarations:

1. That pregnant women are vulnerable to discrimination in the workplace in New Jersey, as indicated in reports that women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired; and

2. It is the intent of the Legislature to combat this form of discrimination by requiring employers to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth, 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.

[Codified at N.J.S.A. 10:5-3.1].

The PWFA also added significant amendments to the LAD. First, it amended Section 12(a), the LAD’s primary substantive anti-discrimination in employment provision, to explicitly include “pregnancy or breastfeeding” as protected characteristics under the LAD. Section 12(a) generally prohibits adverse employment actions based upon protected characteristics in the workplace. Thus, for example, employers may not discharge an employee for being pregnant or allow employees to create hostile work environments for breastfeeding mothers.

The PWFA also added a new Subsection 12(s) to the LAD. That new provision provides that “[i]t 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 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. 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 a 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. 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.

N.J.S.A. 10:5-12(s). For the purposes of this section “pregnancy or breastfeeding” means pregnancy, childbirth, and breast feeding or expressing milk for breastfeeding, or medical conditions related to pregnancy, childbirth, or breastfeeding, including recovery from childbirth.

If you believe your employer has subjected you to discrimination, harassment or retaliation, or denied you a request for a reasonable accommodation, because you are pregnant or breastfeeding, call Poulos LoPiccolo PC immediately at (732) 757-0165 to speak to one of our experienced employment attorneys about the potential legal claims that you may have.