Pregnancy Discrimination

It’s illegal for an employer to discriminate against any current or potential employee on the basis of that employee’s pregnancy.

Discrimination during pregnancy is illegal under federal laws such as the Pregnancy Discrimination Act (PDA) and the Americans With Disabilities Act (ADA). New Jersey also has specific laws that offer more protection to women before, during, and after pregnancy, including the New Jersey Law Against Discrimination (NJLAD).

Protection From Discriminatory Adverse Employment Actions

The United States Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act. It forbids discrimination based on pregnancy in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

The NJLAD also prohibits discrimination in the workplace against pregnant women, including in hiring, firing, compensation, terms and conditions of employment, and retirement. An employer cannot undertake an adverse action against an employee for discriminatory reasons. This includes failure to hire, demotion, discipline, termination, pay reduction, and layoff of employees on account of pregnancy.

Further, if an employee ends her employment because of a pregnancy-related disability, she is not disqualified from receiving New Jersey unemployment benefits.

Victims of discrimination in New Jersey can file employment-related claims with two primary agencies. At the federal level, the Equal Employment Opportunity Commission (EEOC) handles discrimination claims, while the New Jersey Division of Civil Rights (DCR) typically handles discrimination claims at the state level. In order to bring a claim before the EEOC, the complaint must be related to unlawful discrimination or retaliation covered by federal laws. Claims covered only by state law, on the other hand, must be brought before the DCR.

If you believe you’ve been the victim of pregnancy discrimination, you should talk to an attorney experienced in federal and New Jersey anti-discrimination laws. An experienced attorney can help you determine whether you may have a claim, and if so, help you decide which venue would be best for you to pursue an action.

Protection from Harassment

It is generally unlawful for anyone in the workplace to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth – including a woman’s supervisor, coworkers, or clients. Harassment is deemed illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment action (like termination or demotion). If the harassing conduct is intentional, extreme, and outrageous, it may constitute intentional infliction of emotional distress.

Pregnancy Accommodation and Pregnancy-Related Disability Accommodation

Many impairments resulting from pregnancy may be disabilities protected under the Americans with Disabilities Act (ADA), which applies to most employers having 15 or more workers. If an employee is able to perform the essential functions of her job with or without accommodation, her employer must provide her with reasonable accommodations during her pregnancy and as a result of any physical limitations due to childbirth.

The “essential functions” of a job are the fundamental duties of a job, whether or not they constitute the largest share of an employee’s time. An employee who can’t perform the essential job functions, even with a reasonable accommodation, isn’t considered qualified for the job and isn’t protected from discrimination.

Example: A helicopter pilot works for a tour company, where she spends three hours a day flying a helicopter, two hours on maintenance, and two hours on paperwork. Despite the fact that less than 50% of her time is spent in actual flight, it is clear that “flying a helicopter” is an essential function of her employment.

An employee must request necessary accommodations upon the advice of a medical provider and provide notice of the requested accommodation(s). Once notice is provided, the employer and employee must engage in the interactive process, wherein they sit down and discuss what aspects need to be accommodated. The employer must provide options for accommodations, and the employee must provide input as to what will work for her needs. The employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees.

Examples: A pregnant employee may request additional bathroom breaks or breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, temporary transfers to less strenuous or hazardous work, a stool or chair, dress code accommodations such as allowing more comfortable footwear, and more.

Whether or not an accommodation is reasonable is a balancing test. Ideally, the employer and employee devise an accommodation that meets the needs of the employee without creating an undue burden, and it can be implemented as soon as possible. If accommodation is impossible to provide or creates an undue hardship upon the company, an employer may not be required by law to accommodate the employee.

Example: The aforementioned helicopter pilot is advised not to fly during the last two months of her pregnancy and requests a temporary transfer to a less-strenuous office/maintenance position, or a temporary leave of absence. Depending on the circumstances, this may be reasonable (if she works for a national tour company with hundreds of pilots) or unduly burdensome (if she works for a five-person operation).

An employer may not penalize an employee for requesting or using an accommodation.

Breastfeeding Rights in New Jersey

In New Jersey, the Right to Breastfeed in Public Law protects a mother’s right to breastfeed her baby in any location of a place of public accommodation, resort, or amusement where the mother is otherwise permitted to be.

There are no New Jersey laws that protect a mother’s rights to breastfeed at work or authorize breaks for breastfeeding or expressing milk. However, the 2010 Affordable Care Act (which amended the Fair Labor Standards Act, or FLSA) requires, at minimum, that employers do the following:

• Employers must provide reasonable, unpaid breaks for an employee to express breast milk for her nursing child for one year after the child’s birth, each time such employee has need to express the milk.
• Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

Not all employers and employees are subject to these provisions. Additionally, employers with fewer than 50 employees may be able to avoid compliance if they show that it would constitute an unreasonable hardship.

To schedule an appointment at the law offices of Mark | Lavigne, LLC, contact us today. Our experienced employment team can help you determine whether you may have a claim for pregnancy discrimination or other New Jersey employment law claims.