New Jersey Prohibits Discrimination Based on Pregnancy and Reprisals Against Employees Who are Gathering Information for a Possible Claim

In recent months, New Jersey expanded its Law Against Discrimination (LAD) by adding a specific prohibition on January 21, 2014 against discrimination against women who are pregnant or suffer from medical conditions related to pregnancy and childbirth (“Discrimination Amendment”) and by adding a provision on August 29, 2013 barring reprisals against employees who are seeking information from other employees and former employees regarding a possible claim for pay or benefits discrimination (“Reprisal Amendment”).

The Discrimination Amendment requires New Jersey employers to make reasonable workplace accommodations for employees they “know or should know” are affected by pregnancy and who request such accommodations upon the advice of their doctors. “Pregnancy” is defined as “pregnancy, childbirth or medical conditions related to pregnancy or childbirth, including recovery from childbirth.” Such accommodations may include bathroom breaks, modified work schedules, assistance with manual labor and temporary transfers to less strenuous or hazardous work.

As with accommodations for other qualified disabilities, an employer need not provide the accommodation to a pregnant woman if it amounts to an undue hardship. The factors to be considered in determining whether a request creates an undue hardship are:

• The overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget;
• The nature of the employer’s operations, including the composition and structure of the employer’s workforce;
• The nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions and outside funding; and
• The extent to which the accommodation would involve waiving an essential requirement of a job, as opposed to a tangential or non-business necessity requirement (the fact that the requested accommodation would relieve the employee from an essential requirement is not sufficient to deny the accommodation).

This Discrimination Amendment also bans pregnancy discrimination in the other areas covered by the LAD, such as housing, public accommodations and finance; however, the Amendment does not increase or decrease an employee’s rights under law to paid or unpaid leave in connection with pregnancy.

The Reprisal Amendment prohibits employers from taking any reprisals against any employee who seeks certain information from other current and former employees. The Reprisal Amendment specifically protects employees who request information from any other employee or former employee regarding the job title, occupational category and rate of compensation, including benefits or the gender, race, ethnicity, military status or national origin of any employee or former employee, regardless of whether the request was responded to, if the purpose of the request for the information was to assist in investigating the possibility of the occurrence of, or in taking of legal action regarding, potential discriminatory treatment concerning pay, compensation, bonuses, other compensation or benefits.

New Jersey employers must now consider the implications of both Amendments when dealing with pregnant employees and employees who may be attempting to gather information to assert a wage or benefit-related claim against their employer.