Pregnancy discrimination can take a number of different forms. When deciding which statutes to cite in a claim for New York pregnancy discrimination, employment attorneys must consider the types of discrimination covered by each law. Federal antidiscrimination law defines discrimination on the basis of sex to include discrimination based on pregnancy, childbirth, and related medical conditions, but this only addresses adverse employment actions like termination or refusal to hire. New York state and city law identify pregnancy as a distinct protected category, and also require reasonable accommodations for employees who are pregnant or have recently given birth. A lawsuit filed this summer in a New York state court alleges that an employer failed to provide reasonable accommodations in violation of the New York Pregnant Workers Fairness Act (PWFA). Hoover, et al v. Wal-Mart Associates, Inc., et al, No. 18-44970, complaint (N.Y. Sup. Ct., Orleans Cty., Jul. 24, 2018).
The PWFA amended the New York State Human Rights Law to state that an employer commits an “unlawful discriminatory practice” when they “refuse to provide reasonable accommodations to [an employee’s]…pregnancy-related conditions.” N.Y. Exec. L. § 296(3)(a). State regulations prohibit employers from asking about the need for accommodations prior to hiring an individual. They also require employers “to move forward to consider accommodation once the need for accommodation is known or requested.” 9 NYCRR § 466.11(j)(4). The New York State Division of Human Rights describes this as an “interactive process” between the employer and the employee.
The plaintiffs in the Hoover case allege that their former employer’s attendance policy violated their rights under the PWFA by failing to accommodate their need to take time off from work for conditions related to pregnancy. The defendant’s policy assigns points to employees for work absences without prior approval. Accruing a certain number of points results in termination. While the policy identifies numerous authorized purposes for absences, “absences needed because of pregnancy-related conditions do not appear on” the list. Hoover, complaint at 5.