New Jersey Pregnancy Discrimination Bill Heads to Governor’s Desk

Both houses of the New Jersey Legislature have approved a new bill that would add pregnant women to the Law Against Discrimination’s (LAD) protected classes of workers.

Should Governor Christie sign the bill, New Jersey would join a growing number of states and municipalities seeking to augment existing federal and state laws that prevent pregnancy discrimination in the workplace. For example, amendments to the New York City Human Rights Law take effect on January 30, 2014, which require employers with four or more workers to provide “reasonable accommodation” for pregnancy, childbirth and related medical conditions.

Unlike the federal ADA and the New York State Human Rights Law, courts have held that there are no accommodations that are “unreasonable” under the broader NYCHRL if they do not cause undue hardship.  Undue hardship is an affirmative defense that an employer is obligated to plead and prove.  Thus, as a practical matter, whatever accommodations a pregnant employee now requests in New York City must be granted unless the employer is prepared to prove at great expense and risk that doing so would be an undue hardship.

In New Jersey, the new employment law:

• Prohibits businesses from treating a woman affected by pregnancy, for employment-related purposes, in a manner less favorable than other persons not affected by pregnancy but similar in their ability or inability to work.
• Requires employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician.
• Prohibits employers from penalizing workers in terms, conditions or privileges of employment for using the accommodations or, when accommodations are not feasible, for taking time away from work required by the pregnancy, as certified by a physician of the employee taking into account the condition of the employee and the job requirements.

As discussed in a prior Scarinci Hollenbeck Business Law News Blog post, the legislation is partly a response to a 2005 New Jersey Supreme Court decision, in which a slim majority held that the LAD currently allows an employer to terminate a female worker for failing to return from a maternity leave in a timely manner, even though she endured a difficult pregnancy. By a vote of 4-3, the majority reasoned that failing to treat pregnancy differently from other medical conditions under a facially neutral leave policy is not discriminatory.

We will continue to track the status of this legislation and provide updates as they become available. We encourage New Jersey employers to check back regularly and contact experienced counsel regarding any potential compliance concerns.

If you have any questions about the proposed changes to the New Jersey Law Against Discrimination or would like to discuss how the new employment law may affect your business, please contact me or the Scarinci Hollenbeck attorney with whom you work.