Wednesday, February 19, 2014

Déjà vu

New ImageA few weeks ago, I was passing the newspaper rack in the law library (yes, we still have newspapers), and had a deja vu moment when I saw the headline in the New Jersey Law Journal:

NJ Legislature Clears Ban on Discrimination Over Pregnancy

Shades of 1978.  Of course, the NJLJ was reporting a new statute that not only bars sex discrimination on account of pregnancy (which has long been held illegal under NJ's Law Against Discrimination under the heading of discrimination on account of sex) but also imposing for the first time a duty of reasonable accommodation for pregnancy. So it was, after all, headline-worthy in 2014.

The federal Pregnancy Discrimination Act, which amende onlyd Title VII in 1978 to equate pregnancy discrimination  with sex discrimination, has long been held to bar disparate treatment of pregnant women only  when they are like other employees in "their ability or inability to work" (and, as Deborah Widiss recently reiterated, even that equal treatment command  has been applied grudgingly). The New Jersey Supreme Court interpreted LAD similarly: no discrimination, but no need to accommodate.

The new statute, however, requires "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 or transfers to less strenuous or hazardous work." The accommodation must be "needs related to pregnancy" and "based on the advice of {the employee's] physician."  

Needless to say, there is also an undue hardship exception, with the employer explictly assigned the burden of showing such a hardship. The statute lists a number of factors relevant to that determination, and, while it does not weight them, does include "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."

What "reasonable accommodation" conspicuously does not require in the new statute is any leave of absence, and the amendment explicitly states that it does not affect rights to paid or unpaid leave.  Leave, therefore, remains controlled by the FMLA and NJ's FLA.

Despite that provision, many employers might well prefer to offer unpaid leave to workers (who were financially able to take it) rather than engage in the kind of accommodations the statute anticipates. But, of course, since the new law explicitly bars discrimination on account of pregnancy, such leave cannot be forced on employees who would prefer, and "need," one of the other kinds of accommodations.

How this will actually play out in the workplace remains to be seen, but it certainly changes the default position radically in the Garden State.  Probably the biggest problem for employees seeking accommodation is the extent to which their bosses can credibly claim that a given accommodation would, in essence, waive "an essential requirement of a job," presumably more likely for small employers than for larger ones who can more easily shift assignments to cover particular functions.

CAS 

 

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