New Jersey Law Against Discrimination Prohibits Discrimination Against Employees Who Are Pregnant or Breastfeeding
In January 2018, former Governor Chris Christie signed legislation amending New Jersey’s Law Against Discrimination (NJLAD) to expand the protected classes of employees. That legislation became effective July 1, 2018. Among those specifically enumerated classes of employees are those who are affected by “pregnancy or breastfeeding.”
Specifically, the law states that it is illegal for an employer to treat “a woman employee that the employer knows, or should know, is affected by pregnancy or breastfeeding in a manner less favorable than the treatment of other persons not affected by pregnancy or breastfeeding but similar in their ability or inability to work.”1 In addition, the employer must reasonably accommodate pregnant employees in the workplace, by providing accommodations “such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work” when the pregnant employee requests such accommodations “based on the advice of her physician.”2
While the sorts of accommodations set forth in the law may have already been provided to countless pregnant employees in schools and in other workplaces in New Jersey, accommodations for breastfeeding employees have not been the norm historically. To remedy this problem, the law goes further to provide mandatory accommodations for female employees who return to work while breastfeeding. The law states that “in the case of a [sic] employee breastfeeding her infant child, the accommodation shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child.”3 However if the employer can demonstrate that such an accommodation would cause “an undue hardship on the business operations of the employer” then such accommodations would not have to be provided.4 An employer would be able to demonstrate “undue hardship” by considering factors such as the number of employees, the size of the business, the size of the budget, the type of operations, the nature and cost of accommodations needed, as well as “the extent to which the accommodation would involve waiver of an essential requirement of a job.” 5 School districts should perform a careful analysis of any perceived hardship resulting from providing such an accommodation with the board attorney before denying any such request.
However, when reviewing employee requests for leave due to pregnancy or breastfeeding, it is important to note that the law states that it may not be construed as to increase or decrease rights the employee might otherwise have to paid or unpaid leave.
With respect to the rights provided to breastfeeding mothers, the NJLAD is similar to the protections that have been provided since 2010 under the federal Fair Labor Standards Act (FLSA).6 However, unlike the NJLAD, which applies to all New Jersey employers, regardless of size, the FLSA only applies to employers with more than 50 employees.7 Further, the FLSA specifically states that it does not preempt a state law that provides greater protections to employees. Like the NJLAD, the FLSA requires reasonable break time for lactating employees to express milk, but it limits the length of such an accommodation to “1 year after the child’s birth.” Since New Jersey places no such limit on the length of time for an accommodation due to breastfeeding, New Jersey employers should permit the accommodation, even if it continues for more than one year, so long as the employee is still expressing milk for her child.
Similarly, the FLSA also states that the place designated for the employee cannot be a bathroom, and the place must be “shielded from view and free from intrusion from coworkers and the public.”8 However, the NJLAD provides that the designated place to express breast milk must be somewhere other than a “toilet stall, in close proximity to the work area.” Therefore, in this instance, it would appear that the FLSA provides a greater benefit to the employee of a large employer, as it requires the employer to provide a more private room, other than a bathroom, for the employee to express breast milk.
It is important for school administrators to consult with their board attorneys to determine how their districts will accommodate the needs of pregnant and breastfeeding employees. A careful analysis of the availability of potential facilities that comply with the laws must be performed to determine whether the employer can provide a place for the employee to express breast milk that complies with the law. It is essential that school administrators also review and recommend an update to their board’s policies to ensure that they comply with both the LAD and the FLSA with respect to pregnant and breastfeeding employees, as well as to all other protected classes of employees as set forth in the amendments to the NJLAD.
1 N.J.S.A. 10:5-12(s)(as amended).
6 29 U.S.C. § 207(r).