A New Jersey appeals court has ruled that an Ocean Township Police Department policy on light-duty assignments discriminates against pregnant employees in violation of the state Pregnant Workers Fairness Act of 2014.

At issue in the Jan. 3 ruling were two policies the Ocean Township Police Department adopted in 2011 for employees seeking light-duty assignments—one for pregnant officers and the other for officers seeking light duty due to injuries. The policies require a police officer to use up all of his or her accumulated paid leave time before receiving a light-duty assignment. The policy for injured officers, but not the one for pregnant officers, allows the police chief to waive that requirement.

"I think what's really good about the case is the Appellate Division has given teeth to the statute and has given meaning to the legislation and has effectuated the legislators' intent to make sure pregnant women are treated fairly and accommodated in their pregnancy and not penalized," said Donald Burke, who represented the plaintiff officer along with Donald Burke Jr.

Kathleen Delanoy, one of three women on a staff of more than 50 patrol officers in Ocean Township, sought a maternity assignment on her doctor's advice in July 2011 after she became pregnant. She was notified the department did not offer light or modified duty for pregnant officers, but the department adopted light-duty policies for pregnant officers and other officers after she raised the issue.

Delanoy filed a suit in Monmouth County Superior Court in January 2013, claiming the uneven light-duty policies constituted pregnancy discrimination, and Ocean Township removed the case to federal court. The parties agreed in September 2015 to resolve that case under the offer-of-judgment rule for $51,000, plus attorney fees, which were later set at $127,462, and costs of $4,432.

Delanoy became pregnant again in September 2014. This time, because the township pregnancy assignment policy had taken full effect, she was required to use up two weeks of her accumulated leave time. She filed the present suit against the township in November 2014, seeking a declaratory judgment that the township's policies violated the Pregnant Workers Fairness Act and New Jersey Law Against Discrimination.

Superior Court Judge Dennis O'Brien granted Ocean Township's motion to dismiss in January 2018, concluding that the two policies treated pregnant and nonpregnant employees essentially the same. O'Brien also found that being forced to surrender earned sick leave or vacation time did not qualify under the law as an adverse action, and that Delanoy failed to show the township acted with discriminatory intent. O'Brien also agreed with the township's claim that the provision allowing the police chief to waive the leave-time condition applied only to high-ranking superior officers.

On appeal, the National Employment Lawyers Association of New Jersey and the New Jersey Association for Justice submitted amicus curiae briefs agreeing with counsel for Delanoy that the trial court's decision should be overturned. The Attorney General's Office argued as an amicus that summary judgment was wrongly granted to Ocean Township because there are numerous genuine issues of material fact respecting whether they violated the PWFA. The attorney general's legal arguments in interpreting the PWFA were consistent with those of Delanoy, the NJAJ and the NELA-NJ.

The Academy of New Jersey Management Attorneys agreed with Ocean Township that O'Brien's ruling should be upheld. It argued that Delanoy was not treated unequally, that she has no viable claims under the PWFA, and that she is not entitled to accommodation because she conceded she could not perform the essential functions of a police officer during the later part of her pregnancy.

Judges Jack Sabatino, Thomas Sumner Jr. and Richard Geiger, in vacating O'Brien's award of summary judgment, held that Ocean Township's maternity assignment policy unlawfully discriminates against pregnant employees in violation of the PWFA. The appeals court upheld Delanoy's facial challenge to the light-duty policies and directed the trial court to grant her requests for declaratory and injunctive relief. The appeals court also vacated the trial court's award of summary judgment to Ocean Township on the reasonableness of the policies' leave-time condition and whether that condition is so harsh as to comprise an impermissible penalty.

The parties "hotly contested" the question of whether the maternity light-duty policy was a reasonable accommodation, Sabatino wrote for the court. That issue should be resolved by jurors as fact finders, he wrote. Another important question for the jury is whether invalidation of the requirement for officers seeking light duty to give up leave time would cause Ocean Township or its police department undue hardship, Sabatino wrote.

Lori Dvorak of the Law Offices of Dvorak & Associates, who represented Ocean Township, did not respond to a request for comment.