Articles Posted in Pregnancy Discrimination

Sunset Blvd.Employment laws across the country prohibit discrimination on the basis of sex. The legal definition of sex discrimination has grown over the years to encompass a wide range of conduct and disparate treatment that affects workers because of their sex. This includes both sexual harassment and pregnancy discrimination. The entertainment industry comprises a major part of New York City’s culture and economy, but it also remains the setting for a significant amount of sex discrimination. This is true on both sides of the country. A lawsuit filed late last year against a major media company in California, Taylor v. OWN, alleges both sexual harassment and pregnancy discrimination. The case is additionally notable because both the plaintiff and the alleged perpetrator are women. This type of alleged harassment tends to receive less media attention.

All 50 states, the District of Columbia and other U.S. territories, and the federal government have laws prohibiting sex discrimination in the workplace. The New York State Human Rights Law (NYSHRL) expressly mentions sex and “familial status” as protected categories. N.Y. Exec. L. § 296(1)(a). The statute prohibits employers from requiring pregnant employees to take leave against their will in most circumstances, and it goes further than many anti-discrimination statutes by requiring employers to provide “reasonable accommodations” for “known…pregnancy-related conditions.” Id. at §§ 296(1)(g), (3)(a).

California’s Fair Employment and Housing Act (FEHA) covers the same legal ground as the NYSHRL. Its list of protected categories includes sex, and it defines “harassment because of sex” to include both sexual harassment and pregnancy discrimination in many situations. Cal. Gov’t Code §§ 12940(a), (j)(4)(C). It requires employers to offer up to four months of leave to “female employee[s] disabled by pregnancy, childbirth, or a related medical condition.” Id. at § 12945(a)(1).

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Financial DistrictEmployment discrimination based on sex is unlawful in New York City under employment statutes at the city, state, and federal levels. It is considered to include sexual harassment and pregnancy discrimination in most circumstances. A lawsuit filed late last year in a Manhattan state court alleges a pattern of discrimination that includes both of these. Castellanos v. Berkman Capital, et al., No. 159768/2016, complaint (Nov. 18, 2016). The plaintiff describes ongoing acts of sexual harassment, which allegedly culminated in termination when she asked for additional maternity leave.

Courts in the U.S. have recognized two broad categories of sexual harassment. Quid pro quo sexual harassment involves direct requests or demands for sexual activity of some sort as a condition of getting a job, keeping a job, or receiving other benefits of employment. Since this is far from the only kind of sexual harassment people can experience, courts have also recognized claims of sexual harassment when it creates a hostile work environment. The U.S. Supreme Court first recognized sexual harassment as a violation of Title VII of the Civil Rights Act of 1964 in the mid-1980s. It held that the harassment must be so “severe or pervasive” that it “alter[s] the conditions of [the victim’s] employment and create[s] an abusive working environment.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).

Pregnancy discrimination involves disparate treatment based on multiple factors surrounding pregnancy. The Pregnancy Discrimination Act of 1978 amended the definition of “sex discrimination” to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). This can include refusing to hire someone or terminating them because they are pregnant, or unreasonably reducing someone’s job duties or hours because of pregnancy or recent childbirth. The extent to which these laws require employers to make reasonable accommodations for pregnant or nursing employees, however, remains a matter of dispute in courts and legislatures.

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Our jobs are, in many ways, the centerpieces of our lives. We often depend on employment not only to support ourselves and our families but also to provide features like health insurance and retirement savings. For many people, their job shares a close relationship with their identity—one of the first questions people often hear upon meeting someone is “What do you do?” As important as having a job is in our society, though, the employer/employee relationship has a built-in imbalance of power. An employee may be unwilling to challenge discrimination or harassment for fear of losing their job. New York City offers multiple legal protections for employees, and a skilled employment attorney can use these laws to level the playing field, so the employee can assert their rights.

Employers ought to value their employees for the quality of their work and the skills they bring to the table. This accurately describes most employers, but discrimination on the basis of factors like race, sex, religion, sexual orientation, gender identity, criminal history, and others continues to hinder people’s employment prospects for no valid reason. Employees in New York City enjoy the protection of numerous statutes addressing discrimination, harassment, and retaliation.

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pregnant womanWorkers in New York City who are pregnant or who have recently given birth are protected by multiple statutes against pregnancy discrimination. While protections against losing one’s job or suffering a pay cut due to pregnancy, to name only two possible examples, are critically important, they do not address another major issue. The United States is one of the very few countries in the entire world that make no provision whatsoever for paid family leave, including parental leave after childbirth. Only four states currently have paid family leave systems. New York will become the fifth such state in 2018, when a bill signed into law in April 2016 takes effect.

The federal Family and Medical Leave Act (FMLA) guarantees a certain amount of unpaid family leave for qualifying workers of covered employers. In addition to the fact that the leave is unpaid, many employers do not fall under the FMLA’s jurisdiction, and workers have to meet certain benchmarks for the total number of hours worked in order to qualify. As a result, the FMLA’s helpfulness is limited. Most of the world’s nations provide some form of paid family leave. Canada and the United Kingdom, for example, provide six months to one year of paid family leave. Germany, Sweden, Japan, and most countries in Eastern Europe provide a year or more. According to the World Policy Center, the United States joins Papua New Guinea and Suriname in offering no paid leave at all.

Aside from New York, four states have enacted paid family leave laws:  California, New Jersey, Rhode Island, and Washington. Three of those states have implemented paid leave programs as of mid-2016. Washington has not been able to get its program started yet, reportedly due to a lack of provisions for funding in the bill. New Jersey’s program uses a temporary disability insurance program funded by employer and employee contributions. It is available for a variety of situations, including parental leave within 12 months of the child’s birth, for a period of up to six weeks. N.J. Rev. Stat. §§ 43:21-27(o), 43:21-38.

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In vitro fertilizationPregnancy discrimination, which includes various adverse employment actions based on an employee’s pregnancy, recent childbirth, or related medical conditions, is prohibited by federal law and many state and local laws. Disparate treatment of employees who are pregnant or have recently given birth, however, is far from the only pregnancy-related issue affecting people in the workplace. The extent to which the Americans with Disabilities Act (ADA), which requires employers to make “reasonable accommodations” for employees with disabilities, applies to pregnant employees remains unclear from a legal standpoint. Infertility has also been an issue in some court cases, along with discrimination against employees who seek treatments involving assisted reproductive technologies (ART). Courts have reached varying conclusions about this issue.

The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination in the definition of unlawful sex discrimination. 42 U.S.C. § 2000e(k). This statute protects employees from adverse actions like firing, refusal to hire, or reduced hours or job duties unrelated to an employee’s ability to work. Amendments to the ADA in 2008 expanded that statute’s definition of “disability,” and several courts have held that this expanded definition includes some conditions related to pregnancy. Employees are also asking courts to find that employers must make reasonable accommodations for activities like breastfeeding or pumping breast milk during work hours. The Family Medical Leave Act (FMLA) can pertain to pregnancy discrimination, since it requires employers to give eligible employees unpaid time off for family medical situations, and it prohibits discrimination or retaliation based on the use of such leave.

The legal landscape regarding accommodations for pregnancy-related conditions remains unclear, and it is even less clear with regard to employees who undergo ART treatments. These treatments can range from medications intended to improve fertility to artificial insemination and in vitro fertilization (IVF). The issue of disability discrimination with regard to ART has received a fair amount of attention, such as when physicians deny treatment to someone because of an actual or perceived disability. Only a handful of court decisions address ART in the context of employment discrimination.

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batteryPregnancy discrimination perhaps most commonly involves adverse employment actions directly related to an employee’s pregnancy or recent childbirth, such as refusing to hire a pregnant job applicant or terminating or demoting an employee who becomes pregnant. In some cases, however, actions, policies, or practices intended to benefit or protect pregnant workers or job seekers actually constitute unlawful pregnancy discrimination. For example, policies intended to protect pregnant women and their unborn children, known as “fetal protection policies” (FPPs), may violate Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, if they have the effect of creating disparate treatment based on gender. See United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991). Discrimination claims involving FPPs are now rare compared to other types of cases, but they remain an important part of the legal landscape of workplace pregnancy rights.

Many private-sector employers began enacting FPPs in the 1970s and 1980s, as the number of women in the workforce increased. These types of policies were common for jobs that involved the use of, or the risk of exposure to, chemicals that could potentially be harmful to a fetus. At a minimum, FPPs excluded pregnant women from working in positions that posed such a risk. Many FPPs went further than that, excluding all women considered to be of childbearing age, regardless of whether they had any plans to become pregnant.

The Supreme Court’s decision in Johnson Controls held that an FPP barring all “fertile female employee[s]” from certain positions violated Title VII and the PDA. Johnson Controls, 499 U.S. at 190. The defendant operated a battery manufacturing business. Lead is a primary component in the manufacturing process but is also considered a significant health risk for fetuses.

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restroomFederal, state, and city laws in New York City protect workers from discrimination in employment on the basis of pregnancy and childbirth. This not only includes firing an employee because they become pregnant, or refusing to hire a pregnant job applicant for that reason, but also includes disparate treatment affecting one or more pregnant employees. A jury recently ruled in favor of a plaintiff claiming pregnancy discrimination largely due to disparate treatment. Garcia Hernandez v. Chipotle Mexican Grill, Inc., No. 1:14-cv-00297, complaint (D.D.C., Feb. 24, 2014). The jury awarded her compensatory and punitive damages totaling $550,000.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex, race, color, religion, or national origin. The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII to make pregnancy discrimination—defined to include “pregnancy, childbirth, or related medical conditions”—a type of unlawful sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a).

The PDA’s protections apply to adverse actions based on a protected category and to acts that “limit, segregate, or classify” those employees in a way that negatively affects their employment or employment opportunities. Id. at § 2000e-2(a)(2). This includes a situation in which an employer takes actions that interfere with a pregnant employee’s ability to do their job effectively. This was the scenario alleged by the plaintiff in Garcia Hernandez.

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OpenClipartVectors [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayEmployment statutes at the federal, state, and city levels in New York City protect workers against certain types of discrimination related to family responsibilities. These laws protect employees from adverse actions by employers, but they do not address the conflict between needing to care for a family member and needing to go to work to earn a living. The U.S. lags far behind most of the world’s countries when it comes to paid family leave. The New York State Assembly passed a bill in February 2016 that would provide paid family leave through the state’s disability insurance program, but its companion bill is still pending in the Senate.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits employers from discriminating on the basis of pregnancy, childbirth, and certain medical conditions related to either. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) contain similar provisions. N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(22). Recent amendments to the NYCHRL will also protect workers with caregiving responsibilities, such as for a minor child or a sick or disabled relative, from employment discrimination.

None of the above-referenced laws, however, provide for paid leave for employees due to pregnancy, childbirth, or caregiver responsibilities. The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., requires unpaid leave for qualified employees of covered employers, but that is as far as U.S. federal law goes.

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irenewirsing [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayLegislation signed by the mayor of New York City in January 2016, which will take effect in May, amends the New York City Human Rights Law (NYCHRL) to protect “caregivers” against employment discrimination. Int. 108-A (N.Y.C. Council, Jan. 5, 2016). The new law defines “caregiver” quite broadly, and it prohibits discrimination by employers because of an employee’s “actual or perceived status as a caregiver.” State law offers some protection for workers with caregiving responsibilities, but not as much as the NYCHRL will once the new law takes effect. Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute, does not provide much protection in this regard, as a Manhattan federal court made clear several years ago in EEOC v. Bloomberg, L.P., 778 F.Supp.2d 458 (S.D.N.Y. 2011).

The recently enacted amendments to the NYCHRL define a “caregiver” as someone who “provides direct and ongoing care for a minor child or care recipient.” N.Y.C. Admin. Code § 8-102(30)(a), as amended by Int. 108-A. “Care recipients” include individuals residing with the caregiver and “covered relatives,” who do not have to live in the caregiver’s household. Id. at § 8-102(30)(b). A care recipient is someone who “relies on the caregiver for medical care or to meet the needs of daily living.” Id. The term “covered relative” includes most familial relationships. Id. at § 8-102(30)(c). The term “caregiver” can therefore apply to parents and legal guardians of minor children, people caring for an elderly, disabled, or sick relative, and a wide range of other scenarios.

The Equal Employment Opportunity Commission (EEOC) filed suit against Bloomberg based on allegations of a pattern or practice of discrimination against employees who became pregnant and took maternity leave. The lawsuit asserted claims for pregnancy discrimination, a well-established area of law under Title VII and the Pregnancy Discrimination Act (PDA) of 1978. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The case amounted to a claim that the defendant systematically discriminated against employees with new parental caregiving responsibilities. The court rejected this argument.

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fAlva [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayBoth New York City and the state of New York have recently enacted laws expanding protections against workplace discrimination based on issues affecting workers’ family or home lives. New York City’s law regarding caregiver discrimination, or “family responsibilities discrimination,” assists the many people who must juggle full-time employment with caring for an elderly or disabled relative, or another person living in their home. New York state law now prohibits employment discrimination on the basis of “familial status.” While these two laws might sound similar, they protect workers based on different criteria. Both laws offer greater protection than federal anti-discrimination law, although the Equal Employment Opportunity Commission (EEOC) offers guidance on how federal law might be able to help.

The New York City Human Rights Law (NYCHRL), under amendments passed by the City Council in January 2016 that take effect in May, applies a very broad definition of “caregiver.” It includes anyone who provides “direct and ongoing care” for either a “minor child” or a “care recipient.” N.Y.C. Admin. Code § 8-102(30)(a). The latter group, “care recipients,” consists of relatives or other people residing with the caregiver who “rel[y] on the caregiver for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). The statute does not specify that the minor child under the caregiver’s care must be biologically or legally related to the caregiver. It only states that the care provided to the child must be “direct and ongoing.”

Caregiver status will become a protected category under the NYCHRL once the new law takes effect, meaning that employers may not discriminate against employees based solely on their caregiver responsibilities. N.Y.C. Admin. Code § 8-107(1)(a). Employers are also prohibited from inquiring about a job applicant’s caregiver status, and from stating that caregiver status is a factor in hiring decisions. Id. at § 8-107(1)(d).

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