               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2899-17T4

KATHLEEN J. DELANOY,

     Plaintiff-Appellant,
                                       APPROVED FOR PUBLICATION

v.                                            January 3, 2020

                                          APPELLATE DIVISION
TOWNSHIP OF OCEAN,
ANDREW BRANNEN,
STEVEN PETERS, NEIL
INGENITO, WILLIAM
LARKIN, CHRISTOPHER
SICILIANO, W. MICHAEL
EVANS, WILLIAM GAROFALO,
and DONNA SCHEPIGA,

     Defendants-Respondents.
_____________________________

           Argued October 21, 2019 – Decided January 3, 2020

           Before Judges Sabatino, Sumners and Geiger.

           On appeal from the Superior Court of New Jersey, Law
           Division, Monmouth County, Docket No. L-4441-14.

           Donald Francis Burke argued the cause for appellant
           (Law Office of Donald F. Burke, attorneys; Donald
           Francis Burke and Donald Francis Burke, Jr., on the
           briefs).

           Lori A. Dvorak argued the cause for respondents (Law
           Offices of Dvorak & Associates, LLC, attorneys; Lori
            A. Dvorak, of counsel; Marc D. Mory and Martin J.
            Arbus, on the briefs).

            Thaddeus P. Mikulski, Jr., argued the cause for amicus
            curiae National Employment Lawyers Association of
            New Jersey.

            Michelle S. Silverman argued the cause for amicus
            curiae The Academy of New Jersey Management
            Attorneys, Inc. (Morgan, Lewis & Bockius LLP,
            attorneys; Richard G. Rosenblatt and Michelle S.
            Silverman, on the brief).

            Benjamin Folkman argued the cause for amicus curiae
            The New Jersey Association for Justice (Folkman Law
            Offices, PC, attorneys; Eve R. Keller, Benjamin
            Folkman, Sarah Slachetka, Paul C. Jensen, Jr., and
            Lauren M. Law, on the brief).

            Farng-Yi D. Foo, Deputy Attorney General, argued the
            cause for amicus curiae The Office of the Attorney
            General (Gurbir S. Grewal, Attorney General, attorney;
            Jason W. Rockwell, Assistant Attorney General, of
            counsel; Farng-Yi D. Foo, on the brief).

      The opinion of the court was delivered by

SABATINO, P.J.A.D.

      This appeal stems from a pregnancy discrimination suit brought by a

female police officer against her employer, Ocean Township, and various Ocean

Township officials.   Plaintiff contends defendants violated the New Jersey

Pregnant Workers Fairness Act ("PWFA"), a statute that has yet to be construed

in a published opinion. The PWFA amended the New Jersey Law Against

Discrimination ("LAD"), effective January 17, 2014, to expressly prohibit

                                      2
                                                                      A-2899-17T4
pregnancy-based discrimination in employment and in other contexts. Among

other things, the statute obligates employers, subject to an undue hardship

exception, to provide reasonable accommodations in the workplace to pregnant

women upon their request, and to not penalize such women because of their

pregnant status. N.J.S.A. 10:5-12(s).

      When plaintiff found out she was pregnant with her second child, she

informed her supervisors her doctor recommended she be taken off patrol. She

asked to be transferred to a "light-duty" or less strenuous position within the

Police Department. Plaintiff was consequently assigned to non-patrol duty,

pursuant to the Department's "Maternity Assignment Standard Operating

Procedure" ("Maternity SOP"). That policy allows pregnant officers to work a

maternity assignment, but on the condition that the officer use all her

accumulated paid leave time (e.g., vacation, personal, and holiday time) before

going on that different assignment. The Maternity SOP also differs from the

Department's policy providing light-duty assignments for nonpregnant injured

officers because only the latter policy gives the Police Chief the authority to

waive the loss-of-leave-time condition.

      Plaintiff contends that the Department's Maternity SOP discriminates

against pregnant employees because it is less favorable than the light-duty

assignment policy for nonpregnant officers. She further argues that requiring


                                        3
                                                                       A-2899-17T4
her to deplete her accumulated leave time as a condition of her maternity

assignment violates the PWFA, because employers are obligated under the

statute to "reasonably" accommodate pregnant employees. She further argues

this condition improperly penalized her in violation of the statute.

      The trial court granted summary judgment in favor of defendants, finding

that defendants' maternity assignment policy did not violate what it perceived as

the PWFA's "equal treatment" mandate. The court did not reach the issues of

reasonable accommodation, undue hardship, or penalty. The court also denied

plaintiff's cross-motion for partial summary judgment on her facial challenge.

      For the reasons that follow, we vacate the entry of summary judgment in

favor of defendants. We hold the Department's maternity assignment policy, as

written, unlawfully discriminates against pregnant employees as compared to

nonpregnant employees who can seek and potentially obtain a waiver from the

Police Chief. Such nonequal treatment violates the PWFA. Consequently, we

uphold plaintiff's facial challenge to those uneven policies and direct the trial

court to grant her discrete requests for declaratory and injunctive relief, leaving

other remedial issues to the trial court.

      In addition, we vacate summary judgment in defendants' favor with

respect to the accommodation issues. We do so because there are genuine issues

of material fact for a jury to resolve concerning the reasonableness of the SOP's


                                            4
                                                                          A-2899-17T4
loss-of-leave-time condition and whether that condition is so harsh as to

comprise an impermissible penalty.              The jury further must evaluate the

employer's defense of undue hardship.

                                           I.

      Plaintiff Kathleen J. Delanoy began working as a law enforcement officer

in the Ocean Township Police Department in about January 2003. By the time

of the motion proceedings in this case, Delanoy was one of three female police

officers in a staff of over fifty patrol officers.

      Plaintiff's First Pregnancy and Her Employer's Policies

      In or around March 2011, Delanoy discovered she was pregnant with her

first child, and was due in November 2011. At the time, Ocean Township did

not have a formal maternity leave or light-duty policy for police officers.

      In July 2011, the Township implemented two new policies: the Maternity

SOP and the Light-Duty/Modified Duty Standard Operating Procedure ("Light-

Duty SOP").1 As we will discuss in more detail, both policies require a police

officer to deplete up to all of his or her accumulated paid leave time as a

condition of receiving light-duty or a maternity assignment. Notably, however,

the Light-Duty SOP, but not the Maternity SOP, grants the Chief of Police


1
  In September 2016, the Department revised the two SOPs at issue "in an effort
to address [p]laintiff's concerns regarding the prior SOPs." Those revisions do
not eliminate plaintiff's claim in this case.
                                           5
                                                                          A-2899-17T4
discretion to waive the requirement that an officer use up his or her accumulated

time as a condition of the changed assignment.

      Additionally, the two policies differ as to how the return-to-duty date is

set. Under the Light-Duty SOP, the return-to-duty date is set by the employee's

treating doctor, whereas the Maternity SOP return-to-duty date is set according

to a formula, but no more than forty-five calendar days past the infant's expected

due date.

      On July 11, 2011, plaintiff informed Antonio Amodio, who was then the

Police Chief, that her doctor instructed her she needed to work a maternity

assignment for the remainder of her pregnancy. Seven days later, on July 18,

2011, plaintiff began her maternity assignment under the Maternity SOP.

Plaintiff worked in the maternity assignment until her first child was born in

November 2011.

      The First Lawsuit

      In January 2013, plaintiff filed her first lawsuit (Docket Number MON-L-

322-13) against the Township and other defendants in the Law Division,

alleging the Township and former Chief Amodio discriminated against her on

the basis of her first pregnancy by implementing the two non-identical SOPs to

her detriment. Defendants removed that case to federal court.




                                        6
                                                                         A-2899-17T4
      Plaintiff's Second Pregnancy

      While her federal litigation was pending, on or around September 19,

2014, plaintiff advised her supervisors of her second pregnancy. By that point,

the Light-Duty and Maternity SOPs adopted in 2011 were fully in effect.

      The Present Lawsuit

      In November 2014, plaintiff filed the present pregnancy discrimination

lawsuit in the Law Division against the Township of Ocean; the current Chief

of Police, Steven Peters; the five members of the Ocean Township Council; and

Township Manager Andrew Brannen. Among other things, plaintiff sought a

declaratory judgment, finding that the Township's policies violated the PWFA

and its provisions within the LAD, N.J.S.A. 10:5-12. Plaintiff also requested an

injunction prohibiting defendants "from effectuating policies which are

discriminatory to pregnant police officers." Plaintiff further sought damages

and counsel fees.

      When plaintiff learned that she would be forced by the Township to take

an early maternity leave, she filed an order to show cause for declaratory and

injunctive relief. The trial court denied her request. Plaintiff unsuccessfully

sought interlocutory review from this court and the Supreme Court. Meanwhile,

plaintiff accepted an offer of judgment to resolve the federal litigation.




                                        7
                                                                             A-2899-17T4
        Plaintiff then moved to enter default against defendants in this lawsuit.

Defendants cross-moved to dismiss plaintiff's complaint pursuant to Rule 4:6-

2(e).    Defendants argued that plaintiff's claims were barred on various

procedural grounds, including the statute of limitations, the entire controversy

doctrine, collateral estoppel, and res judicata.

        The trial court granted in part and denied in part defendants' dismissal

motion. The motion judge 2 found that, to the extent plaintiff's second lawsuit

seeks to recover damages from the Township for discrimination related to her

first pregnancy, such claims were barred by the entire controversy doctrine.

Plaintiff's other claims were allowed to proceed. The judge denied plaintiff's

motion to enter default against defendants.

        Plaintiff's Maternity Assignment

        Plaintiff's projected due date in her second pregnancy was March 17,

2015, which ultimately proved to be the child's actual date of birth. Plaintiff

submitted a doctor's note to her employer on September 19, 2014, advising that

she was pregnant and requesting that she be placed on light-duty from September

22, 2014, until the end of her pregnancy. 3 As Chief Peters certified, plaintiff


2
 A different judge in the vicinage subsequently ruled on the summary judgment
motions that are now before us.
3
   We have not been asked to address, and do not consider in our analysis,
plaintiff's eligibility for unpaid family leave time under the federal and state
                                           8
                                                                         A-2899-17T4
was "temporarily reassigned to [a] maternity assignment" on September 22,

2014.

        According to the Township, the two SOPs created new positions for

officers requesting light-duty or maternity assignments. As then-Township

manager Andrew Brannen explained in his deposition, the SOPs "guarantee[ed]

a work assignment for anybody on maternity leave or anybody on light duty."

By contrast, before the SOPs were promulgated in 2011, whether someone was

given light-duty depended on whether such an assignment existed and was

available.

        Plaintiff worked in the maternity assignment for several months.         In

accordance with the policy, she was assigned an administrative job in the

Department's records department, as well as handling what are known as walk-

in reports. As described in plaintiff's deposition, she was assigned the same type

of work (e.g., record keeping and handling walk-in reports) that she had been

assigned during her first pregnancy. Plaintiff was considered a "primary walk-

in officer," which meant that when people would come into the Department to

report a crime, accident, or similar incident she would be responsible for

meeting with that person and then preparing a report.



Family Leave Acts. See 29 U.S.C. §§ 2611 to -2619 (the federal statute);
N.J.S.A. 34:11B-1 to -11B-16 (the New Jersey analogue).
                                        9
                                                                         A-2899-17T4
      Plaintiff testified she had problems as the primary walk-in officer because

she could not wear her gun when interacting with the people who would walk

into the police station.4 She recounted how the Department once had a mentally

unstable person come in as a walk-in, pull the fire alarm, and run out. Two

uniformed officers carrying their weapons then chased that person into the

parking lot and wrestled him to the ground, but ultimately one of the officers

involved in the scuffle was injured and had to retire. Plaintiff stated this

previous occurrence made her "absolutely terrified" because she felt vulnerable

and unable to defend herself and her unborn child if a walk-in civilian became

violent.

      Plaintiff's Transition from Maternity Assignment to Maternity Leave

      Plaintiff contends she worked the maternity assignment from September

22, 2014, until February 25, 2015, when the Department forced her to go on

maternity leave and begin using up her accumulated leave time. The Township

disputes that end date, asserting that plaintiff worked the maternity assignment

through March 2, 2015, and began her maternity leave the next day on March 3,

2015. Regardless of this discrepancy in the exact end dates, the parties do not




4
  Plaintiff agreed that she should not have worn her gun, and in fact did not
want to wear a gun, because firing a weapon could expose her unborn child to
lead.
                                       10
                                                                        A-2899-17T4
dispute that plaintiff was forced to use up several of her accumulated leave time

days as a condition of her receiving the maternity assignment.

      The Loss-of-Leave-Time Condition

      It is undisputed that plaintiff went on maternity leave before her second

child's expected due date of March 17, 2015. The Maternity SOP specifies that

accumulated time needs to be scheduled and used with reference to the officer's

"return to duty date"—a date which must be no more than forty-five days past

the child's expected due date—and calculated backwards until all of the officer's

accumulated time is depleted.

      Although the parties do not agree on the precise timeline, in order to

obtain her modified assignment plaintiff had to deplete roughly two weeks of

accumulated leave time. This requirement is at the heart of the case.

      Defendants assert the Maternity SOP is fair because when the Township

created the benefit of light/maternity duty positions for officers, it expected the

officers to give something up in return (e.g., accumulated time). According to

the defendants, the "give and take" of the Maternity Duty and Light-Duty SOP

was intended to save money for taxpayers. Defendants allege the SOPs created

a temporary clerical position for officers if they needed light/maternity duty.

Instead of paying the officers the lower salary of a file clerk, the Township pays

them their normal salary during the temporary assignment. Defendants contend


                                        11
                                                                          A-2899-17T4
it was only fair that the officers gave up accumulated time before getting the

benefit of light-duty or maternity duty.

      Plaintiff contests the legality of being forced to use up her accumulated

leave time. She contends she was medically able and cleared by her physician

to continue working her maternity assignment up until her due date. She asserts

the SOP's loss-of-leave-time requirement is unlawful under the PWFA.

      Motion Practice

      After discovery was conducted, the parties filed cross-motions for

summary judgment. Following oral argument, the trial court denied plaintiff's

motion and entered summary judgment in favor of defendants dismissing all of

plaintiff's claims.

      In his January 19, 2018 oral ruling, the motion judge found that the two

SOPs treated all pregnant and non-pregnant employees essentially the same, by

requiring them to forfeit all accumulated earned time before being provided with

a different work assignment. Applying what he considered the PWFA's equal

treatment mandate, the judge analyzed plaintiff's allegations under both

"disparate treatment" and "disparate impact" concepts.

       As to disparate treatment, the judge found that plaintiff had failed to

present evidence that she had suffered any adverse action. The judge held that

being forced to surrender earned time and take early maternity leave did not


                                           12
                                                                       A-2899-17T4
qualify under the law as an adverse action. The judge also held that plaintiff

was required to show defendants acted with discriminatory intent to prove

disparate treatment. In this regard, the judge found that "the record is just devoid

of the facts which establish that the police defendants and the Township

[C]ouncil defendants acted with discriminatory intent, in implementing the

maternity SOP."

      Additionally, the judge agreed with defendants that the provision in the

Light-Duty SOP granting discretion to the Police Chief to waive the loss-of-

leave-time condition permissibly applied only to high-ranking superior officers,

"who perform administrative functions, or essential functions for the

Department, and is not applicable to the plaintiff as a patrol officer."

      The motion judge further rejected plaintiff's claims under a disparate

impact theory. The judge concluded that because not all pregnant women are

equally harmed by the Maternity SOP, the policy "does not create an adverse

impact for all members of her protected class." The judge therefore granted

summary judgment dismissing plaintiff's statutory claims.          The judge also

dismissed her other causes of action and denied her own cross-motion for partial

summary judgment.




                                         13
                                                                           A-2899-17T4
                                       II.

      The Legislature enacted the PWFA as L. 2013, c. 220, § 2, and made it

effective as of January 17, 2014. The statute amends our state's LAD in several

places, a number of which are pertinent to this appeal.

      Statutory Background and the Young Case

      Subject to certain limited exceptions, the PWFA makes it illegal in New

Jersey to discriminate against pregnant women in a variety of contexts. With

respect to the workplace, the statute strengthens the protections afforded to

pregnant employees under federal law through Title VII of the Civil Rights Act

of 1964, 42 U.S.C.A. § 2000e(k).

      To some extent, several states, including New Jersey, were prompted to

adopt such state-law legislation in response to the decision of the United States

Court of Appeals for the Fourth Circuit in Young v. United Parcel Service, 707

F.3d 437, 446 (4th Cir. 2013). In Young, the Fourth Circuit upheld summary

judgment dismissing a federal pregnancy discrimination action by a female

driver against her employer, a parcel service company, which had fired her after

she became unable to lift up to seventy pounds as required by company policy.

The Court of Appeals rejected the employee's contention that federal law

required her employer to provide her with a reasonable accommodation to relax

the lifting requirement. Id. at 451. In reaching that conclusion, the Court of


                                       14
                                                                         A-2899-17T4
Appeals reasoned the pregnant employee did not have a "disability" within the

meaning of Title VII, because her lifting limitations due to her pregnancy were

merely temporary and did not significantly restrict her ability to perform maj or

life activities. Id. at 450.

      In March 2015 – coincidentally a few months after New Jersey's passage

of the PWFA – the United States Supreme Court reversed in part the Fourth

Circuit's decision in Young. Young v. United Parcel Service, Inc., 575 U.S. 206

(2015). The Court did so because of evidence that the employer had treated the

pregnant plaintiff less favorably than several nonpregnant employees who had

similar physical limitations. Even so, the Supreme Court did not adopt the

plaintiff's argument that federal law requires employers, absent proven disparate

treatment of pregnant employees, to provide reasonable accommodations that

can enable such pregnant workers to continue to work. Id. at 219-20.

      Objectives of the PWFA

      In adopting the PWFA, our Legislature expressed in Section 3.1 of the

statute several public policy concerns and objectives.         Specifically, the

Legislature found and declared:

             a.    That pregnant women are vulnerable to
             discrimination in the workplace in New Jersey, as
             indicated in reports that women who request an
             accommodation that will allow them to maintain a
             healthy pregnancy, or who need a reasonable
             accommodation while recovering from childbirth, are

                                       15
                                                                        A-2899-17T4
            being removed from their positions, placed on unpaid
            leave, or fired;

            b.     It is the intent of the Legislature to combat this
            form of discrimination by requiring employers to
            provide reasonable accommodations to pregnant
            women and those who suffer medical conditions related
            to pregnancy and childbirth, 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; and

            c.    It is not the intent of the Legislature to require
            such accommodations if their provision would cause an
            undue hardship in the conduct of an employer’s
            business.

            [N.J.S.A. 10:5-3.1 (emphasis added).]

      Four Components

      The PWFA essentially has four distinct and important components: (1)

language that prohibits unequal treatment of pregnant women in a variety of

contexts, including the workplace; (2) provisions that require employers to

provide pregnant workers, upon request, with reasonable accommodations that

can enable them to perform their essential job functions; (3) a mandate that the

employer must not "penalize" a pregnant worker for requesting or receiving the

accommodation, and (4) an undue hardship exception to the reasonable

accommodation provision.




                                       16
                                                                        A-2899-17T4
             1. The PWFA's "Equal Treatment" Mandate

      The first statutory objective of eradicating unequal treatment was

accomplished by inserting the word "pregnancy" (or a variant of that term) into

subsections (a) (concerning employment); (b) (concerning labor organizations);

(c) (concerning hiring practices and job postings); (f) (concerning public

accommodations); (h), (k), and (o) (concerning real estate transactions and

leases); (i) (concerning banking and credit lending); (l) (concerning contracts);

and (m) (concerning the sale of goods and services). As we shall discuss,

subsection (a), prohibiting discrimination against pregnant women by

employers, is the most pertinent of these sections here.

      Apart from these various insertions of the term "pregnancy" or its variant

into pre-existing portions of the LAD, the PWFA added a detailed new

provision, subsection (s), which focuses upon pregnancy discrimination in the

workplace and principles of reasonable accommodation. Subsection (s) reads in

full as follows:

             s. [It shall be an unlawful employment practice] [f]or
             an employer to treat, for employment-related purposes,
             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. In addition,
             an employer of an employee who is a woman affected
             by pregnancy shall make available to the employee
             reasonable accommodation in the workplace, such as

                                         17
                                                                           A-2899-17T4
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, for needs related to the pregnancy when the
employee, based on the advice of her physician,
requests the accommodation, unless the employer can
demonstrate that providing the accommodation would
be an undue hardship on the business operations of the
employer. The employer shall not in any way penalize
the employee in terms, conditions or privileges of
employment       for    requesting    or     using    the
accommodation. Workplace accommodation provided
pursuant to this subsection and paid or unpaid leave
provided to an employee affected by pregnancy shall
not be provided in a manner less favorable than
accommodations or leave provided to other employees
not affected by pregnancy but similar in their ability or
inability to work. This subsection shall not be construed
as otherwise increasing or decreasing any employee’s
rights under law to paid or unpaid leave in connection
with pregnancy.

      For the purposes of this section "pregnancy"
means pregnancy, childbirth, or medical conditions
related to pregnancy or childbirth, including recovery
from childbirth.

      For the purposes of this subsection, in
determining whether an accommodation would impose
undue hardship on the operation of an employer's
business, the factors to be considered include: 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 type of the employers
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

                           18
                                                            A-2899-17T4
            would involve waiver of an essential requirement of a
            job as opposed to a tangential or non-business necessity
            requirement.

            [N.J.S.A. 10:5-12(s) (emphasis added).]

      The first sentence of subsection (s) reinforces the statute's equal treatment

mandate, by making it an unlawful practice for an employer to treat a pregnant

or breastfeeding employee "in a manner less favorable than the treatment of

other persons . . . [who are] similar in their ability or inability to work." Ibid.

By declaring pregnant workers to be a protected class under the LAD, the statute

affords them all the LAD's general protections, including its robust range of

remedies and protections from retaliation or reprisal.

            2. The "Reasonable Accommodation" Mandate

      The provisions that follow the first sentence of subsection (s) prescribe

that employees in New Jersey "shall make available" to pregnant employees

"reasonable accommodation." Ibid. Those accommodations can include, as

subsection (s) recites, such measures as bathroom breaks, water breaks, periodic

rest, assistance with manual labor, job restructuring, modified work schedules,

or "temporary transfers to less strenuous or hazardous work." Ibid. Such

measures are warranted "when the employee, based on the advice of her

physician, requests the accommodation." Ibid. By prescribing such reasonable

accommodation, the PWFA goes beyond federal law in aiding pregnant workers.


                                        19
                                                                          A-2899-17T4
            3. The "Penalty" Prohibition

      The statute further declares that an employer "shall not in any way

penalize the [pregnant] employee in terms, conditions or privileges of

employment for requesting or using the accommodation." Ibid. The statute does

not define, however, what might constitute such an unlawful "penalty ," a

concept we will discuss, infra.

            4. The "Undue Hardship" Exception

      An employer's duty under subsection (s) to provide a reasonable

accommodation is qualified by an "undue hardship" exception. The statute

enumerates factors to determine whether providing a requested accommodation

would impose an undue hardship on the employer's business. Those factors

include: the business's overall size, the number of employees, the number and

type of the employer's facilities and the size of its budget, the business's type of

operations, the composition and structure of its workforce, and the nature and

cost of the accommodation, bearing in mind the availability of tax credits and

deductions. Ibid. The PWFA also requires consideration of "the extent to which

the accommodation would involve waiver of an essential requirement of a job

as opposed to a tangential or business necessity requirement." Ibid.

      Reiterating the earlier principle of equal treatment, subsection (s) also

mandates that accommodations provided to a pregnant worker "shall not be


                                         20
                                                                           A-2899-17T4
provided in a manner less favorable than accommodation or leave provided to

other employees" who are unable to perform their usual jobs for reasons other

than pregnancy. Ibid.

                                        III.

      With these major facets of the PWFA in mind, we examine the trial court's

order granting summary judgment to defendants dismissing plaintiff's claims in

their entirety and denying plaintiff's cross-motion.

      In reviewing these summary judgment rulings, we adhere to customary

principles under Rule 4:46 and case law. In particular, we review the record in

a light most favorable to the non-moving party, and giving that party all

reasonable inferences from the facts. R. 4:46-2; see also Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995). In reviewing the same written record

as the motion judge, we do not afford the judge's decision any special deference,

since no witnesses testified and no credibility findings were made. See W.J.A.

v. D.A., 210 N.J. 229, 237-38 (2012).

      Plaintiff and the two employee-rights amici organizations who have weighed

in on her side in this appeal5 argue the trial court's decision should be overturned.

They contend there are genuine issues of material fact on her claim of an unlawful


5
  Those two amici are the National Employment Lawyers Association of New
Jersey ("NELA-NJ"), and the New Jersey Association for Justice ("NJAJ").

                                         21
                                                                            A-2899-17T4
denial of a reasonable accommodation. Plaintiff and the employee-sided amici

further maintain the Township's policies requiring pregnant employees to deplete

their accumulated leave time in order to obtain an accommodation comprises an

unlawful "penalty" under the statute. Plaintiff and the NJAJ also urge that we reverse

the denial of partial summary judgment on her facial challenge, which is based on

unequal treatment under the Department's two SOP policies.

      Conversely, defendants and the employer-aligned amicus6 contend that we

should affirm the trial court's ruling. They assert that, even viewing the record in a

light most favorable to plaintiff, she has no viable claims under the PWFA. They

insist that plaintiff was not treated unequally. They further maintain that she was

not entitled to receive an accommodation, because she admitted she could not

perform the essential functions of a police officer during the later phases of her

pregnancy.

      Additionally, defendants and the ANJMA contend plaintiff was not penalized.

They assert the light-duty assignment she was given was not an accommodation, but

instead the Township's gratuitous creation of a wholly different job for which a "quid

pro quo" of loss-of-leave-time was justified.




6
  That amicus is the Academy of New Jersey Management Attorneys
("ANJMA").
                                          22
                                                                             A-2899-17T4
        Lastly, the Attorney General7 argues as an amicus that summary judgment

was improvidently granted in favor of defendants 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 are substantially

consistent with those of plaintiff, the NJAJ, and the NELA-NJ.8

                                          A.

        We first consider plaintiff's claims of unequal treatment. Viewing the

record in a light most favorable to plaintiff, it is clear that defendants were not

entitled to summary judgment on this claim and that, on the other hand,

plaintiff's facial challenge is valid.

        As we have noted, the Maternity SOP Policy is less favorable than the

Light-Duty SOP in a critical respect. The latter policy, unlike the maternity

policy, allows the Police Chief for certain officers to waive the requirement that

the officer receiving this benefit must deplete his or her accumulated bank of


7
  "Although we are not bound to adopt the Attorney General's position, we give
due deference to the Attorney General as the legal adviser to State Government,
see N.J.S.A. 52:17A-4(e), and also because of the Attorney General's
institutional role in enforcing the NJLAD and in overseeing the Division of Civil
Rights, N.J.S.A. 10:5-8." Calabotta v. Phibro Animal Health Corp., 460 N.J.
Super. 38, 66 n.11 (App. Div. 2019); Quarto v. Adams, 395 N.J. Super. 502, 513
(App. Div. 2007) (recognizing the Attorney General's interpretation of a statute
is entitled "to a degree of deference" because of his or her "special role as the
sole legal adviser to most agencies of State Government").
8
    We thank all the amici for their helpful participation in this appeal.
                                          23
                                                                             A-2899-17T4
leave time. 9     The trial court underestimated the significance of this key

difference in its oral decision declaring the policies to be "neutral."

        Plaintiff has identified at least one nonpregnant patrolman and one

nonpregnant sergeant who reportedly obtained from the Police Chief such a

waiver on light-duty without having to use up their accumulated leave time.

Although the defense disagrees with her contentions about those other

employees, that as-applied factual dispute must be resolved by a jury.

        In any event, the two written policies are clearly unequal 10 on their face.

No pregnant officers (no matter what positions they hold) can obtain a waiver,


9
     The waiver may be available where the Police Chief finds:

              1. The officer's current full-time assignment is
              necessary for the efficient operation and function of the
              department.

              2. That an extended leave by the officer would be a
              detriment to department operations.

              3. The officer's condition does not prevent him or her
              from performing all the daily, routine duties
              commensurate with his or her position.
10
    It might be contended that the loss-of-leave-time conditions of both the
Maternity SOP and the Light-Duty SOP disadvantage officers in the Department
with more experience who have more accumulated leave time. For instance, a
rookie officer with little or no accumulated time would be able to receive a less
strenuous assignment without much sacrifice, as compared with a veteran officer
who has more to lose. We do not have that potential issue of inequity before us
in this case, but our opinion should not be interpreted by its silence to mean that
we are endorsing the differential impact.
                                          24
                                                                           A-2899-17T4
whereas some nonpregnant officers can, in the Police Chief's discretion. The

facial difference supports plaintiff's requests for declaratory and injunctive

relief. The denial of partial summary judgment on that facial challenge is

consequently reversed. On remand, the trial court shall fashion the specific

terms of that relief.

      It is less clear, however, whether the facial difference between the two

SOPs proximately caused plaintiff, who never had the chance to apply for a

waiver, any damages. The damages question is reserved for trial.

      Furthermore, plaintiff has adduced factual contentions of retaliation and

disparate treatment in defendants' implementation of her modified assignment.

Among other things, she alleges she was unfairly assigned to "walk-in" and was

otherwise treated detrimentally after she requested to be placed on light-duty.

Again, these are fact questions to be sorted out by a jury.

      In sum, these matters require the summary judgment order in favor of

defendants on the unequal treatment claim to be vacated, and to reinstate

plaintiff's as-applied claims of unequal treatment.

                                        B.

      We turn to plaintiff's claim that defendants unlawfully failed to provide

her with a reasonable accommodation during her second pregnancy. The trial

court did not expressly address this discrete claim in its oral ruling.


                                         25
                                                                          A-2899-17T4
      An employer's obligation to provide reasonable accommodation, as set

forth in the PWFA, largely derives from general concepts of reasonable

accommodation that have been well developed in disability law. Under the

federal Americans With Disabilities Act ("ADA"), an employer is liable for "not

making reasonable accommodations to the known physical or mental limitations

of an otherwise qualified individual who is an applicant or employee," unless

the accommodation would impose an undue hardship on the defendant's business

operations. 42 U.S.C.A. § 12112(b)(5)(A); see also Victor v. State, 203 N.J.

383, 411 (2010) (quoting and relying upon that ADA provision). Although the

term "reasonable accommodation" is not defined within the text of the LAD, our

Supreme Court in Victor declared that "[a]ffording persons with disabilities

reasonable accommodation rights is consistent with the LAD's broad remedial

purposes[.]" Id. at 412; see also Royster v. State Police, 227 N.J. 482, 499-500

(2017) (describing and applying the reasonable accommodation requirement in

an LAD disability case); Raspa v. Gloucester County Sheriff's Office, 191 N.J.

323, 339-42 (2007) (same).

      Generally, a plaintiff in an LAD disability case alleging an employer's

failure to provide a reasonable accommodation must establish these elements:

"(1) the plaintiff had a disability; (2) the plaintiff was able to perform the

essential functions of the job; (3) the employer was aware of the basic need for


                                       26
                                                                        A-2899-17T4
an accommodation; and (4) the employer failed to provide a reasonable

accommodation." Royster, 227 N.J. at 500; see also Victor, 203 N.J. at 410,

421.

       As the Supreme Court recently recognized in Caraballo v. Jersey City

Police Dept., 237 N.J. 255, 268 (2019), the Division of Civil Rights has adopted

a regulation, N.J.A.C. 13:13-2.5(b)(1), which provides illustrative examples of

reasonable accommodations in LAD disability cases.            They include such

measures as:

            i. Making facilities used by employees readily
            accessible and usable by people with disabilities;

            ii. Job restructuring, part-time or modified work
            schedules or leaves of absence;

            iii. Acquisition or modification of equipment or
            devices; and

            iv. Job reassignment and other similar actions.

            [Ibid.]

Such accommodations "'are all designed to make certain changes in the work

environment or structuring of employees' time that will allow disabled

employees to remain at work without their physical hardships impeding their job

performances.'" Caraballo, 237 N.J. at 268 (quoting Jones v. Aluminum Shapes,

Inc., 339 N.J. Super. 412, 426-27 (App. Div. 2001)).



                                       27
                                                                        A-2899-17T4
      In LAD disability cases, our courts have construed the notion of

"reasonable accommodation" as entailing an employer's duty to accommodate

the "physical disability" of a disabled employee, and not a "duty on the part of

the employer to acquiesce to the disabled employee's requests for certain

benefits or renumeration." Jones, 339 N.J. Super. at 426; see also Caraballo,

237 N.J. at 268 (quoting with approval this passage); Raspa, 191 N.J. at 339

(same).

      Defendants argue they were not obligated under the PWFA to provide

plaintiff with a reasonable accommodation because, when she requested a less

strenuous assignment, she acknowledged that her physician had advised she

could not perform the functions of a police officer during the latter phase of her

pregnancy.

      Defendants contend this is a critical admission by plaintiff that she would

no longer be able to perform the essential functions of her job, which is a

required element of a LAD disability case. They argue plaintiff did not ask for

an accommodation that would enable her to continue to function as a patrol

officer, such as, say, an afternoon schedule that would allow her to deal with

pregnancy-related morning sickness. Instead, as defendants assert, plaintiff

asked for a fundamentally different non-patrol assignment in the police station.




                                        28
                                                                         A-2899-17T4
By her own admission, she could no longer safely carry a gun, which apparently

is an essential requirement of an officer working on patrol in the Township. 11

      Defendants' "no duty to accommodate" argument is unpersuasive for

several reasons. First, it does not overcome the important distinction between

an accommodation that is temporary in nature – during the period while a

pregnant     employee   transitions   to    childbirth   –   versus   a   permanent

accommodation that enables an employee to perform her usual job functions on

an ongoing and permanent basis.

      This conceptual distinction was recognized by the Supreme Court in

Raspa, where an employer provided light-duty work assignments to employees

who had a short-term inability to perform the essential functions of their usual

positions.   As the Court described it, "[t]he light duty positions were not

intended to be a permanent post, but a temporary way station or bridge between

an inability to work due to injury and a return to full employment status." 191

N.J. at 340. The disabled plaintiff in Raspa claimed he was entitled to keep such

a light-duty position on a permanent basis. The Court rejected that claim,

explaining that the light-duty assignment was "intended as a shield to protect


11
   The parties have not supplied us with a written job description for a patrol
officer in the Township, nor any general civil service job description that spells
out the officer's duties and qualifications. Even so, it is not disputed here that
the ability to carry a gun is one of a patrol officer's essential functions.

                                           29
                                                                            A-2899-17T4
the temporarily disabled, and not as a sword by which a person who is otherwise

unqualified for the position can demand a permanent posting." Ibid. The Court

held that "the LAD does not require that an employer create a permanent and

indefinite light duty position for a permanently disabled employee if the

employee's disability, absent a reasonable accommodation, renders him [or her]

otherwise unqualified for a full-time, full-duty position."     Ibid. (emphasis

added).

      The PWFA adopts this sensible conceptual distinction between permanent

accomodations and temporary accommodations for pregnant workers.                 It

expressly recognizes that, among things, a reasonable accommodation for a

pregnant employee can include "temporary transfers to less strenuous or

hazardous work." N.J.S.A. 10:5-12(s). The statute thus contemplates that

female workers near the end of their pregnancies may temporarily be unable to

perform certain essential physical tasks inherent in their regular jobs, but

nonetheless have a right to obtain (subject to the employer's undue hardship

exception) a transfer to a temporary different assignment that is "less strenuous

or hazardous." Ibid. This short-term reassignment for a pregnant worker is akin

to the "temporary way station" described in Raspa.

      In addition, the Department's Maternity SOP requires a pregnant officer

seeking less strenuous or dangerous responsibilities to "submit a doctor's note


                                       30
                                                                         A-2899-17T4
acknowledging that the officer is pregnant and that it is recommended that the

officer no longer perform the duties of her current full-time assignment." This

mandated acknowledgment should not be treated as a waiver of a pregnant

woman's rights to a reasonable accommodation under the PWFA. The SOP does

not state that making such a request forfeits the employee's statutory rights under

the PWFA, even assuming such a notice would be enforceable.

        Although it is not labeled as such, the Department's Maternity SOP

essentially operates as an accommodation measure for pregnant officers. It is

designed to offer a female officer who is nearing the end of her pregnancy and

who has physical limitations the opportunity to continue to work in a less

strenuous or dangerous assignment and still earn a paycheck. The assignment

is a temporary way station that bridges the continued employment of the

pregnant employee who needs a workplace accommodation until her child is

born.

        If the Department did not already have such a policy in place, plaintiff

would have a right under the PWFA to obtain some form of temporary

accommodation, subject to an employer's undue hardship defense. That right of

accommodation is in accord with the strong policy objectives of the PWFA

expressed by the Legislature in Section 3.1 of the statute.




                                        31
                                                                          A-2899-17T4
                                        C.

       The question then arises as to whether the Maternity SOP is a "reasonable"

accommodation. This is a hotly contested question. Plaintiff argues that the

Maternity SOP is unreasonable because it requires her to deplete accumulated

leave time as a condition of receiving the temporary assignment. Defendants

counter that the loss-of-leave-time condition is a reasonable exchange for the

Department creating less strenuous positions that would not otherwise be

needed, and to save taxpayer funds.

       The trial court did not grapple with this question, at least not explicitly,

because it was persuaded the PWFA would not be violated so long as pregnant

employees and nonpregnant workers were treated in equal fashion. The court

reasoned that both pregnant officers under the Maternity SOP and nonpregnant

injured officers under the Light-Duty SOP generally have to use up accrued

leave time in order to receive a modified assignment. The court's analysis is

flawed, however. For one thing, as we have already spotlighted, the Light-Duty

SOP contains a valuable waiver pathway that is not contained in the Maternity

SOP.

       Moreover, even if the Maternity SOP and Light-Duty SOP had identical

terms, plaintiff still might have a viable claim under the PWFA if those terms




                                         32
                                                                          A-2899-17T4
and conditions were "unreasonable" or imposed an unlawful "penalty" on the

employee. Mere equivalency might not be enough to comply with the statute.

      For instance, suppose the SOPs each imposed a harsh consequence upon

the pregnant or nonpregnant employee who requested a less strenuous

assignment. Assume that harsh consequence was, say, requiring the officer

against his or her wishes to cover holidays or other undesirable patrol shifts upon

his or her return to work (assuming union rules did not prohibit that scheduling

practice). The employer might assert this scheduling is justified because other

employees undertook the patrol officer's functions during his or her absence.

Without deciding the hypothetical issue here, a pregnant plaintiff might

plausibly argue that imposing such a burden upon her as a condition of obtaining

a temporary reassignment is so onerous as to make the accommodation policy

"unreasonable" or a "penalty" disallowed by the statute.

      The statute does not define what comprises a reasonable accommodation

or, for that matter, when any conditions attached to the accommodation become

a prohibited penalty. Some guidance is supplied by generic disability laws and

regulations.

      In particular, N.J.A.C. 13:13-2.5 describes a "reasonable accommodation"

as a concept that "must be assessed on an individual basis." N.J.A.C. 13:13 -

2.5(a).   The regulation also states that "[t]he determination of whether an


                                        33
                                                                          A-2899-17T4
employer has failed to make reasonable accommodation will be made on a case-

by-case basis." N.J.A.C. 13:13-2.5(b). An informal "interactive process" is

customarily necessary to address the employee's "precise limitations" resulting

from the disability. Tynan v. Vicinage 13 of the Superior Court, 351 N.J. Super.

385, 400 (App. Div. 2002) (citing 26 C.F.R. § 1630.2(O)(3)). The employer

must make a "good faith effort to assist the employees in seeking

accommodation." Ibid.

      Similar principles logically should be extended to an employer's

obligation to provide a reasonable accommodation under the PWFA. In many

(but not all) instances, including the present case, the question of reasonableness

is one best evaluated by a jury. In that vein, our courts already have a model

civil jury charge to guide jurors in assessing whether or not an employer's

accommodation efforts or policies are reasonable. Model Jury Charges (Civil),

"Failure to Accommodate Employee with Disability Under the New Jersey Law

Against Discrimination" (rev. Feb. 2018).

      Here, jurors should evaluate whether the Department's loss-of-leave-time

policy is a reasonable and fair condition of the pregnant worker receivin g a less

strenuous temporary maternity assignment while remaining on the Department's

payroll. The jurors would be guided in this regard by customary notions of the

"reasonable person" standard, just as they are often called upon to evaluate in


                                        34
                                                                          A-2899-17T4
negligence cases. The jury should also examine all disputed factual issues

relating to damages, such as whether plaintiff, as she alleges, could have feasibly

performed her maternity assignment up to her actual due date.

      We cannot and do not rule in this appeal upon whether the Department's

loss-of-leave-time policy is either reasonable or unreasonable.          Summary

judgment for defendants must be vacated, and the question of reasonableness

determined by the jurors as fact-finders.

                                        D.

      Plaintiff, the NELA-NJ, and the Attorney General have all argued that the

PWFA's inclusion of a prohibition on "penalizing" a pregnant employee who

seeks an accommodation has independent meaning beyond what is merely

unreasonable. A common dictionary definition of a "penalty" connotes "[a]

punishment." Webster's II New College Dictionary 812 (1999). The legislative

history of the PWFA we have reviewed is unenlightening on the subject. At the

very least, the term presumably disallows retaliation by an employer against an

employee who requests an accommodation. Beyond that, we cannot tell exactly

what the Legislature had in mind by using the term.

      Traditional principles of statutory construction require courts to attempt

to imbue meaning to all words used in a statute. See, e.g., Brugaletta v. Garcia,

234 N.J. 225, 248 (2018). We also recognize that our courts have construed the


                                        35
                                                                          A-2899-17T4
LAD, of which the PWFA is now a part, expansively "in order to achieve its

beneficial purpose." Nini v. Mercer Cty. Cmty. College, 202 N.J. 98, 115

(2010). In addition, subsection (s) broadly instructs that the pregnant employee

cannot be penalized "in any way." N.J.S.A. 10:5-12(s).

      We cannot say definitively or precisely what the term "penalize" signifies

in the PWFA, other than to say, as the Attorney General and others argue, the

term appears to disallow employer-imposed conditions on accommodations that

are especially harsh. We respectfully refer the subject to the Model Civil Jury

Charge Committee to develop an appropriate jury instruction on the subject.

Alternatively, the Division on Civil Rights is free to promulgate a regulation on

the subject. For the present, we decline to resolve whether defendants' loss-of-

leave-time requirement unlawfully "penalizes" pregnant officers and instead

defer that assessment to a jury.

                                       E.

      All that said, another important jury question here is whether invalidation

of the loss-of-leave-time condition, as plaintiff requests, would cause the

Township or the Department an "undue hardship." See N.J.S.A. 10:5-12(s).

Here again, general disability law can furnish some guidance. An "undue

hardship" can entail an employee' fiscal or operational concerns, or both. On

this subject, N.J.A.C. 13:13-2.5, which addresses reasonable accommodation


                                       36
                                                                        A-2899-17T4
under the LAD, instructs that "[i]n determining whether an accommodation

would impose undue hardship on the operation of a business," these four factors

are to be considered:

            i. The overall size of the employer's business with
            respect to the number of employees, number and type
            of facilities, and size of budget;

            ii. The type of the employer's operations, including the
            composition and structure of the employer's workforce;

            iii. The nature and cost of the accommodation needed,
            taking into consideration the availability of tax credits
            and deductions and/or outside funding; and

            iv. The extent to which accommodation would involve
            waiver of an essential requirement of a job as opposed
            to a tangential or non-business necessity requirement.

Subsection (s) of the LAD, which addresses undue hardship under the PWFA,

uses virtually identical language. N.J.S.A. 10:5-12(s).

      A fair and thorough weighing of these multi-factored considerations in the

present case requires the presentation of witness testimony and other trial

evidence and assessment by a trier of fact. We cannot determine on the existing

record whether defendants can establish an undue hardship. The trial court did

not pass upon the issue. The issue is remanded for trial, along with the other

jury issues we have identified. 12


12
  We are mindful there are only three female police officers in the Department,
which might suggest the burden of further accommodating any pregnant officers
                                       37
                                                                        A-2899-17T4
      Reversed in part, vacated in part, and remanded.          We do not retain

jurisdiction.13




in the Maternity SOP by eliminating the loss-of-leave-time condition may be
modest. However, the Department may wish for parity to modify its Light-Duty
SOP in a similar manner, which could have more substantial impacts on the
Department as a whole.
13
   We do not resolve here whether any of the individual named defendants are
entitled to dismissal. It appears their appropriate status in the case can be better
evaluated at the time of the trial. We provide no advisory opinion about the
merits of their alleged individual liability.
                                         38
                                                                           A-2899-17T4
