Today, the Supreme Court issued the most important Pregnancy discrimination case in its history. In Justice LaVecchia’s unanimous opinion, the Supreme Court laid out the parameters in an organized and comprehensive manner reminiscent of Lehman v Toys R Us. Congratulations to Ted Mikulski and NELA-NJ for once again bringing home the bacon.
Here are some of the important takeaways:
The Pregnant Workers Fairness Act, N.J.S.A. 10:5-12(s) has three distinct and separate causes of actions, which should be pleaded as separate causes of action: 1) “unequal” or “unfavorable” treatment of a pregnant or breastfeeding employee; 2) failure to provide a reasonable accommodation to a pregnant or breastfeeding employee (subject to the employer’s claim of undue hardship, separately explained in the subsection); and 3) illegal penalization of a pregnant or breastfeeding employee for requesting an accommodation.
For unequal or unfavorable treatment, policies that treat light-duty for pregnancy in a disparate manner from other light-duty provision may be deemed to be violative on their face. In this case, the Court upheld summary judgment in favor of the employee and held that trial need only concentrate on causation and damages.
For reasonable accommodation for pregnancy and breastfeeding, the standards are different and more employee-friendly than for disability accommodations. Here, it is the employers’ burden to prove that accommodation would create an undue burden. The employee does not have to prove the absence of an undue hardship as part of her prima facie case. If the employer can produce proofs raising a genuine question about the undue hardship of such a temporary accommodation, then the issue is presented to the jury for resolution.
The third cause of action, penalization, is independent of unfavorable or unequal treatment and focuses on when the conditions of a particular accommodation is especially harsh or creates a hostile working environment. The Court directed that a comprehensive model jury charge be fashioned in the new area of protection.
So, we have three new causes of action arising out of the PWFA – unequal of unfavorable treatment, reasonable accommodation, and penalization. The Court instructs that these should be pled as separate causes of action using these designations. Anyone who has a pending pregnancy discrimination should seriously consider amending your pleadings to conform with this instruction.
Contact our law firm now if you have experienced discrimination in the workplace as a result of a pregancy. Burnham Douglass wants to help you.