On Jan. 21, 2014, New Jersey Gov. Chris Christie signed legislation expanding the New Jersey Law Against Discrimination (LAD) to provide heightened protections to pregnant employees and job applicants, beyond those already afforded under the LAD or any federal anti-discrimination statute on the books. The new law, which took effect immediately, makes a number of important changes to the state’s anti-discrimination statute of which employers should be aware.
First, the amendments added pregnancy to the list of traits explicitly protected under the statute. Although New Jersey courts have previously interpreted the LAD’s prohibition against gender discrimination to encompass pregnancy-based discrimination as well, “pregnancy” – which is defined to include pregnancy, childbirth and medical conditions related to pregnancy or childbirth – is now a stand-alone protected class under the statute. Thus, the LAD now specifically provides that it shall be unlawful for an employer to discriminate against an employee or job applicant because she is pregnant, and prohibits employers from treating female employees whom the employer knows (or should know) are pregnant less favorably than it treats its non-pregnant workers.
Second, the amendments expanded the LAD so as to require employers to provide reasonable accommodations to pregnant employees, regardless of the stage or “routine” nature of the pregnancy in question, so long as the sought-after accommodation is based upon the advice of the employee’s physician. This particular aspect of the new law constitutes a significant expansion of the protections afforded to pregnant employees under New Jersey’s anti-discrimination statute. Prior to the amendments, an employer’s obligation to provide an accommodation to a pregnant worker was contingent upon her pregnancy being uniquely complicated so as to render the pregnancy a “handicap” within the meaning of the LAD’s disability discrimination provisions. Consequently, employers in New Jersey were not previously required to provide reasonable accommodations to employees with “normal” or “run-of-the-mill” pregnancies. That subtle (but important) distinction was eliminated with the passage of the new law.
Insofar as what qualifies as a “reasonable accommodation,” the amendments provide an expansive (but not exhaustive) list of the types of accommodations that may be required in this context, which include bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, modified work schedules, and temporary transfers to less strenuous or hazardous work.
That being said, employers are still not obligated to provide an accommodation if doing so would impose an “undue hardship” upon its business operations. To determine whether a particular accommodation would meet this standard, the new law sets forth a non-exhaustive list of factors that should be considered, including the size of the employer’s business, the type of the employer’s operations, the nature and cost of the accommodation requested, and the degree to which the accommodation would require the employer to forgo an essential function of the employee’s position, as opposed to ancillary job duties.
Finally, the new law prohibits employers from retaliating against employees for requesting or using pregnancy-related accommodations.
As is true for all other forms of discrimination under the LAD, any employee who is subjected to unlawful discrimination or retaliation under this new law may be entitled to recover a range of relief, including compensatory damages, punitive damages and attorneys’ fees.
In light of these new changes, employers in New Jersey would be well advised to review and revise their employment policies to ensure that they adequately account for the new statutory protections afforded to the state’s pregnant workers.
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Ms. Colwin, managing partner of Gordon & Rees’s New York office, is a leading U.S. trial lawyer with 48 cases successfully tried to verdict. She is a legal analyst on the Fox News Network, where she regularly appears on legal issues involving high-profile matters. Ms. Colwin represents corporate executives and Fortune 500 clients who rely on her and her team of attorneys and experts to handle high-stakes legal matters. She recently served as co-chair for the American Conference Institute’s 20th National Employment Practices Liability Insurance Conference and she was selected as vice chair of the Federation of Defense & Corporate Counsel’s Employment Section for 2012-2013. Ms. Colwin has received numerous national recognitions, including Notre Dame Law School’s prestigious Graciela Olivarez Award, and she was named by Forbes Business American Airlines as one of the six most influential women in America.