Under federal employment law, sexual harassment and pregnancy discrimination are both considered to be forms of unlawful discrimination on the basis of sex or gender. The laws of New York and New York City deal with the issues somewhat differently, while still recognizing the close relationship between the two. Both types of conduct involve disparate treatment of an employee based on sex, as demonstrated by a lawsuit currently pending in a New Jersey state court. Russo v. Robert Wood Johnson Health Sys., No. L-003497-15, complaint (N.J. Super. Ct., Middlesex Co., Jun. 16, 2015). The plaintiff describes a pattern of sexual harassment that abruptly turned to harassment based on her pregnancy.
From 2008 to 2015, the plaintiff worked for a New Jersey hospital. She alleges that her supervisor subjected her to ongoing sexual harassment during a period of about two years, but his conduct changed when he learned about her pregnancy in June 2013. Instead of unwelcome sexual remarks, he allegedly turned to “disparaging and unwarranted comments about her work performance.” The plaintiff claims that he warned her that, by taking maternity leave from January to July 2014, she risked losing her job.
After returning to work, the plaintiff claims that she was initially allowed to use her private office to pump breast milk during the work day, but the hospital’s HR director withdrew this permission. She was instructed to use a lactation room in a different building. The room was too far from her own office, she claims, to allow her to use it during her breaks. After the hospital terminated her in June 2015, the plaintiff filed suit against the hospital and several hospital officials. In addition to claims of sexual harassment and pregnancy discrimination, she alleges that the withdrawal of permission to use her office to pump breast milk was retaliation for reporting the supervisor’s alleged harassment.
At the federal level, the Pregnancy Discrimination Act of 1978 amended Title VII of the federal Civil Rights Act of 1964 to include pregnancy discrimination in the definition of unlawful sex discrimination. 42 U.S.C. § 2000e(k). Neither the New York State Human Rights Law (NYSHRL) nor the New York City Human Rights Law (NYCHRL) specifically identify pregnancy as a protected status. The NYSHRL expressly prohibits employers from “compel[ling] an employee who is pregnant to take a leave of absence.” N.Y. Exec. L. § 296(1)(g). Under the NYCHRL, an employer cannot “refuse to provide a reasonable accommodation…to the needs of an employee for her pregnancy, childbirth, or related medical condition.” N.Y.C. Admin. Code § 8-107(22).
Under federal, state, and New York City law, sexual harassment is generally considered a form of sex discrimination. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986) (Title VII); Thoreson v. Penthouse Intl., 179 A.D.2d 29, 43 (N.Y. App. 1st Dep. 1992) and Belle Ctr. v. Human Rights Div., 221 A.D.2d 44, 49-50 (N.Y. App. 4th Dep. 1996) (NYSHRL); Espinal v. Interactive Revenue Co., Ltd., 2007 N.Y. Slip Op 31830 at 2 (PDF file) (N.Y. Sup. Ct., N.Y. Co. 2007) (NYCHRL). In order to support a cause of action under any of these laws, the alleged harassment must be “sufficiently severe and pervasive as to alter the conditions of employment.” Espinal at 2.
The issue of reasonable accommodations for pregnant workers remains in dispute in many ways, but both New York and federal law address the needs of workers who are breastfeeding. The NYS Nursing Mothers in the Workplace Act, enacted in 2007, requires employers to allow a worker a reasonable amount of time “to express breast milk for her nursing child for up to three years following child birth.” N.Y. Lab. L. § 206-c. In 2010, the Patient Protection and Affordable Care Act—also known as “Obamacare”—amended the Fair Labor Standards Act to include similar requirements for employers. 29 U.S.C. § 207(r).
The gender discrimination attorneys at Phillips & Associates advocate for the rights of employees, former employees, and job seekers throughout the New York City area. Contact us today online or at (212) 248-7431 to schedule a free and confidential consultation.
More Blog Posts:
Plaintiff in Pregnancy Discrimination Lawsuit Claims Employer Fired Her Twice for Same Pregnancy, New York Employment Attorney Blog, November 3, 2015
Study Highlights Difficulties Faced by Employees in New York and Around the U.S. During Pregnancy and After Giving Birth, New York Employment Attorney Blog, October 5, 2015
Legal Protection Against Pregnancy Discrimination, Other Unlawful Employment Practices May Depend on Whether One Is an “Employee”, New York Employment Attorney Blog, September 30, 2015