N.J. Model Civil Jury Charge 2.26A

2.26A PENALIZING EMPLOYEE AFFECTED BY PREGNANCY FOR

REQUESTING OR USING AN ACCOMMODATION (Approved

10/2022)

Plaintiff claims that defendant unlawfully penalized plaintiff for requesting [or

using] an accommodation of pregnancy [or breastfeeding] . Specifically, plaintiff

argues that defendant should have maintained [insert description of terms, conditions

and/or privileges that were changed] rather than [describe change(s)]. Defendant

argues that [insert description of defendant’s position, such as “it was not aware that

plaintiff needed an accommodation” or “the changes to plaintiff’s terms, conditions

and employment did not penalize plaintiff”, etc.].

To prevail on a claim, plaintiff must prove each of the following elements by a

preponderance of the evidence. First, plaintiff must prove that the defendant knew or

should have known that plaintiff was affected by pregnancy or breastfeeding. Second,

plaintiff must prove that based on the advice of plaintiff’s physician, plaintiff requested

or used an accommodation of needs related to pregnancy or breastfeeding, a nd that

defendant was aware of the request or use of an accommodation of pregnancy or

breastfeeding. Third, plaintiff must prove that defendant detrimentally altered one or

more of the terms, conditions or privileges of employment . Fourth , plaintiff must

prove a causal connection between the request or use of the accommodation and

defendant’s decision to change the terms, conditions or privileges of plaintiff’s

employment.1

1. Affected by Pregnancy or Breastfeeding

To prove the first element of plaintiff’s claim, the plaintiff must show that the

defendant knew or should have known that plaintiff was pregnant or breastfeeding.

“Pregnancy or breastfeeding” means pregnancy, childbirth, and breastfeeding or

expressing milk for breastfeeding, or medical conditions related to pregnancy,

childbirth, or breastfeeding, including recovery from childbirth.2

2. Request or Use of Accommodation Based on Physician Advice

The second element that the plaintiff must prove is that based on the advice of

plaintiff’s physician,3 plaintiff requested or used an accommodation of needs related

to pregnancy [or breastfeeding], and that defendant was aware of plaintiff’s request or

use of an accommodation of pregnancy [or breastfeeding]. In many cases, plaintiff

will do so by offering evidence that plaintiff requested an accommodation from

defendant. It is not necessary that the request for accommodation be in writing or even

use the phrase “reasonable accommodation”.4 An employee may use plain English

1 See Delanoy v. Township of Ocean, 245 N.J. 384, 410-412 (2021).

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

3 When the protected conduct involves requesting or using an accommodation related to

breastfeeding, the plaintiff need not show that plaintiff was acting on the advice of a physician.

4 Tynan v. Vicinage 13 of Superior Court of New Jersey , 351 N.J. Super . 385, 400 (App. Div.

2002), certif. denied, 183 N.J. 215 (2005).

and need not mention any law requiring accommodation. 5 Although there are no

magic words that the employee must use, the employee must make clear to the

employer that some accommodation is needed to perform the employee’s job because

of pregnancy [or breastfeeding] .6 However, plaintiff need not prove that an

accommodation was requested if plaintiff can prove that defendant knew about the use

of an accommodation in some other way.

3. Detrimental Change in the Terms, Conditions or Privileges of Employment

The third element that plaintiff must prove is that the defendant altered the terms

and conditions of the plaintiff’s employment to the plaintiff’s detriment. Generally,

the plaintiff may prove this element in one of two ways. First, the plaintiff may show

that the defendant imposed unreasonable conditions on the use of the accommodation.

Second, plaintiff may show that (a) defendant altered, in any way, one or more of the

terms, conditions or privileges of employment after defendant became aware of the

request or use of an accommodation and (b) a reasonable person would believe that the

change was detrimental.7

In deciding whether the conditions the employer imposed on the use of the

accommodation were unreasonable and/or the change (s) to plaintiff’s terms,

5 Ibid.

6 Ibid.

7 See Delanoy, 245 N.J. at 410-412.

conditions or privileges of employment was detrimental, you must view the conduct

from the perspective of a reasonable person, not from plaintiff's own subjective

perspective. In other words, the issue you must decide is not whether plaintiff

personally believed that the conditions were unreasonable and/or the change in the

terms, conditions and privileges of employment was detrimental. The issue you must

decide is whether a reasonable person would find that the conditions imposed on the

use of the accommodation were unreasonable and/or the change to the terms,

conditions and privileges of employment was detrimental. You must use your own

judgment in deciding whether a reasonable person would believe that the conditions

imposed on the use of the accommodation was unreasonable and/or the alteration of

one or more of the terms, conditions and privileges of employment was detrimental.

It is not necessary that the plaintiff show that plaintiff has actually been

psychologically harmed by the change to the terms, conditions or privileges of

employment, or that the plaintiff has suffered any economic loss as a consequence

of the change. Those is sues may be relevant to the damages plaintiff can recover,

but they are not relevant to the issue of whether the conduct was unlawful. Any

change to the terms, conditions or privileges of employment is unlawful if it was

taken in response to the request or use of an accommodation of pregnancy or

breastfeeding and a reasonable person would find that the change was detrimental.

4. Causal Connection

NOTE TO JUDGE

The causal connection charge should only be given where the defendant

disputes that it changed the plaintiff’s terms, conditions or privileges of

employment in response to the request or use of the accommodation.

The fourth and final element is whether the plaintiff can prove the existence

of a causal connection between the request for or use of an accommodation and the

change to the terms, conditions and privileges of employment by the employer.

Ultimately, in considering the fourth element of the plaintiff’s case, you must decide

whether the plaintiff’s request for or use of an accommodation played a role in and

made an actual difference in the defendant's decision

8 to [insert change to terms,

conditions or privileges of employment]. It is the plaint iff’s burden to prove that it

is more likely than not that the defendant penalized plaintiff because of the plaintiff’s

request or use of an accommodation. That is the ultimate issue you must decide: did

the defendant [insert change to terms, conditions o r privileges of employment]

because of the plaintiff’s request or use of an accommodation. The plaintiff may

prove this directly, by proving that a retaliatory reason more likely than not

motivated the defendant’s action, or indirectly, by proving that the defendant’s stated

reason is not the real reason for the defendant’s action.

8 See Donofry v. Autotote Systems, Inc., 350 N.J. Super. 276, 295 (App. Div. 2001); see also Model

Civil Charge 2.21 for an alternate formulation to be used with the jury.

You may find that the defendant had more than one reason or motivation for

defendant’s actions. For example, you may find that the defendant was motivated

both by the plaintiff’s request for or use of an accommodation and by other, non -

retaliatory factors, such as the plaintiff’s job performance. To prevail, the plaintiff

is not required to prove that the request for or use of an accommodation was the only

reason or mo tivation for the defendant’s actions. Rather, the plaintiff must only

prove that the request for or use of an accommodation played a role in the decision

and that it made an actual difference in the defendant’s decision. 9 If you find that

the plaintiff’s request for or use of an accommodation did make an actual difference

in the defendant’s decision, then you must enter judgment for the plaintiff. If,

however, you find that the defendant would have made the same decision regardless

of the plaintiff’s re quest for or use of an accommodation, then you must enter

judgment for the defendant.

Because direct proof of causation is often not available, the plaintiff is allowed

to prove plaintiff ’s case by circumstantial evidence. In that regard, you are to

evaluate whatever indirect evidence that defendant changed plaintiff’s terms,

conditions or privileges of employment in response to the request or use of

9 See Model Civil Charge 2.21 and cases cited therein at fn. 2; see also Donofry, supra, 350 N.J.

Super. at 296 (“Plaintiff need not prove that his whistle-blowing activity was the only factor in the

decision to fire him.” ); Kolb v. Burns, 320 N.J. Super. 467, 479 (App. Div. 1999) (burden on

plaintiff is to show “retaliatory discrimination was more likely than not a determinative factor in

the decision”).

accommodation that you find was presented during the trial. [The court may refer to

specific types of indirect evidence presented during the trial, such as prior conduct

and/or comments of the parties, etc.]

One kind of circumstantial evidence can involve the timing of events, i.e.,

whether the defendant’s action followed shortly after the defendant became aware

of the plaintiff’s use or request of accommodation. While such timing may be

evidence of causation, it may also be simply coincidental – that is for you to decide.

Another kind of circumstantial evidence might involve evidence that the

defendant became antagonistic or otherwise changed defendant’s demeanor toward

the plaintiff after the defendant became aware of the plaintiff’s request or use of

accommodation. But again, this may be evidence of causation, or it may have no

relationship to the chang e in plaintiff’s terms, conditions or privileges of

employment at all, but it is for you to decide.

In addition, you should consider whether the explanation given by the

defendant for defendant’s action was the real reason for defendant’s actions. If you

don’t believe the reason given by the defendant is the real reason the defendant

changed the plaintiff’s terms, conditions or privileges of employment, you may –

but are not required to – find that the plaintiff has proven plaintiff’s case. You are

permitted to do so because, if you find the defendant has not told the truth about why

defendant acted, you may conclude that defendant is hiding th at plaintiff’s terms,

conditions or privileges of employment were changed because plaintiff requested or

used an accommodation. However, while you are permitted to find causation based

upon your disbelief of the defendant’s stated reasons, you are not required to do so.

This is because you may conclude that the defendant’s stated reason is not the real

reason, but that the real reason is something other than plaintiff’s request or use of

accommodation.

The plaintiff at all times bears the ultimate burden of proving to you that it is

more likely than not that the defendant penalized plaintiff for requesting or using

accommodation of pregnancy or breastfeeding. To decide whether the plaintiff has

proven plaintiff’s claim, you should consider all of the evidence presented by the

parties, using the guidelines I gave in the beginning of my instructions regarding

evaluating evidence generally, such as weighing the credibility of witnesses. [The

court should refer to any other general instructions where appropriate .] Keep in

mind that in reaching your determination of whether the defendant penalized

plaintiff for r equesting or using accommodation, you are instructed that the

defendant’s actions and business practices need not be fair, wise, reasonable, moral

or even right, so long as the plaintiff’s request or use of accommodation did not play

a role and make an actual difference in the defendant’s decision to [insert change to

terms, conditions or privileges of employment].

I remind you that the ultimate issue you must decide is whether the defendant

penalized the plaintiff for requesting or using accommodation by [insert change to

terms, conditions or privileges of employment], and that the plaintiff has the burden

to prove the elements of the claim.

In summary, to win on the claim, plaintiff must prove that it is more likely than

not that (1) plaintiff’s employer knew or should have known that plaintiff was affected

by pregnancy or breastfeeding; (2) based on the advice of plaintiff’s physician, plaintiff

requested or used an accommodation of needs related to pregnancy or breastfeeding,

and that the defendant was aware of such request or use of an accommodation; (3) the

defendant changed, in any way, one or more of the terms, conditions or privileges of

plaintiff’s employment after defendant became aware of the request or use of an

accommodation to plaintiff’s detriment and ( 4) plaintiff must prove a causal

connection between the request or use of the accommodation and defendant’s decision

to change the terms, conditions or privileges of plaintiff’s employment. If you find

that plaintiff has proven these elements by a preponderance of the evidence, you must

render a verdict in favor of plaintiff. If you find that plaintiff failed to prove any of

these elements by a preponderance of the evidence, or defendant has proven by a

preponderance of the evidence that maintaining plaintiff’s terms, conditions and

privileges of employment would have imposed an undue burden on it, you must render

a verdict in favor of defendant.