New Jersey Legislature Adds Protections to Antidiscrimination Statute for Breastfeeding Employees

Federal and New Jersey employment statutes prohibit discrimination against employees on the basis of pregnancy, childbirth, and conditions related to either, but these legal protections have omitted some aspects of the pregnancy and childbirth process. Pregnant workers and workers who have recently given birth often need accommodations in the workplace. The specific needs of breastfeeding employees have long been omitted from both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD). In early 2018, however, the New Jersey governor signed a bill, A2294, amending the NJLAD to provide express protections against discrimination based on breastfeeding, and to require certain reasonable accommodations. The federal Fair Labor Standards Act (FLSA) makes some provision for reasonable accommodations in this context, but only provides for unpaid time.

The Pregnancy Discrimination Act of 1978 amended Title VII’s definition of discrimination “on the basis of sex” to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The NJLAD identifies pregnancy as a distinct protected category alongside factors like sex, race, and religion. N.J. Rev. Stat. § 10:5-12(a). It goes further, stating that employers may not treat employees that they know, or should know, are pregnant differently than non-pregnant employees as long as the employees are capable of performing similar work. Id. at § 10:5-12(s).

Even before the amendments in A2294, the NJLAD went further than federal law, requiring employers to provide certain accommodations to pregnant workers reflecting the need for rest, water intake, restroom usage, lifting restrictions, and schedule modifications. Id. Title VII does not include any provisions for such reasonable accommodations, although the Americans with Disabilities Act may provide some assistance. The ADA Amendments Act of 2008 applies a broader definition of disability that, while not expressly mentioning pregnancy, could include some conditions related to pregnancy. See 29 C.F.R. Appendix to § 1630.2(h).

The FLSA requires employers to provide unpaid breaks for breastfeeding employees to express milk for up to one year after a child’s birth, as well as a private location “other than a bathroom” to do so. 29 U.S.C. §§ 207(r)(1), (2). Employers with fewer than fifty employees are exempt from this requirement if it “would impose an undue hardship.” Id. at § 207(r)(3).

New Jersey Governor Chris Christie signed A2294 into law on January 8, 2018, about a week before leaving office. It took effect immediately as P.L. 2017, c. 263. The new law changes every mention of discrimination on the basis of pregnancy to “pregnancy or breastfeeding.” It defines “breastfeeding” to include “breast feeding or expressing milk for breastfeeding.” N.J. Rev. Stat. § 10:5-12(s), as amended. The law requires employers to provide accommodations to breastfeeding employees to express milk. These provisions are similar to those found in the FLSA, but they do not specifically state that employers are not obligated to pay breastfeeding employees for time spent on these breaks.

The Resnick Law Group’s team of experienced and skilled employment lawyers represents employees, former employees, and job applicants in New Jersey and New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to see how we can assist you.

More Blog Posts:

New Jersey Supreme Court Considers Whether Firing an Employee for Getting Divorced Violates Anti-Discrimination Law, The New Jersey Employment Law Firm Blog, January 8, 2016

New Jersey Woman Alleges Her Employer Fired Her When She Requested Breastfeeding Breaks, The New Jersey Employment Law Firm Blog, December 18, 2015

Lawsuit Claims Sexual Harassment, Pregnancy Discrimination by New Jersey Hospital, The New Jersey Employment Law Firm Blog, December 11, 2015

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