Pregnancy Now Protected Under the New Jersey Law Against Discrimination

On January 21, 2014, Governor Chris Christie signed legislation amending the New Jersey Law Against Discrimination to include pregnancy, childbirth, and related medical conditions among employees receiving protection against discrimination. The law is effective immediately.

Introduced as bill in September 2013 to combat discrimination against pregnant women and women with medical needs after childbirth, the Act requires employers to make reasonable accommodations to pregnant women and those recovering from childbirth. Accommodations can include restroom breaks, breaks for increased water intake, periodic rest, help with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or less hazardous work. The bill referred to reports that women who requested an accommodation in the workplace to help them maintain a healthy pregnancy or who needed a reasonable accommodation as they recovered from childbirth were being removed from their positions, placed on unpaid leave, or fired.

In urging the New Jersey Senate to pass the bill, the American Civil Liberties Union of New Jersey (ACLU)identified some examples of women who were denied reasonable accommodations because of their pregnancy. Before the amendment of the New Jersey Law Against Discrimination, those employer actions were legal. Examples include a pregnant security worker who was denied a stool to sit on at her job, a pregnant cashier who was not allowed to keep a water bottle at her workstation and collapsed at her register, and a pregnant line cook who was denied additional restroom breaks.

The ACLU Public Policy Director also cited a New Jersey Supreme Court case that held that it was legal for a casino to fire a pregnant worker whose doctor instructed her not to return to work after discovering a serious problem with one of the twins that she was carrying. Said the Director, “What does it say about our state’s values that our laws ask a woman to make the choice between doing what’s needed to protect her pregnancy, and keeping her job?”

Employers are not to apply workplace accommodations “in a manner less favorable than accommodations or leave provided to other employees not affected by pregnancy but similar in their ability or inability to work.” Further, the Act does not intend to impact the amount of employees’ rights to paid or unpaid leave under the law.

Subject to exceptions, the New Jersey Law Against Discrimination considers it to be unlawful discrimination to fire, refuse to hire, or otherwise discriminate (that is, compensation or terms, conditions, or privileges of employment) against a person because of “race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait, or because of liability for service in the Armed Forces.” Pregnancy is now added to the list of protected statuses.

The bill provides an exemption for employers if providing accommodations would “cause an undue hardship in the conduct of an employer’s business.” Factors that the Law Against Discrimination considers in determining whether an accommodation presents an undue hardship are as follows:

• the overall size of the employer’s business (number of employees, number and type of facilities, and size of budget);
• the type of the employer’s operations;
• the nature and cost of the accommodation, 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.”

The bill also prohibited discrimination based on pregnancy, childbirth, or related medical conditions in other areas that the Law Against Discrimination covers, such as housing, public accommodations, and finance.

At McLaughlin and Nardi, our experienced attorneys handle a variety of employment related issues, and we can navigate changes in the law to meet specific employment needs for both employers and employees. Call or e-mail us to see what we can do for you.