Articles Posted in Pregnancy Discrimination

New York City’s employment discrimination laws cover a wider range of protected categories than most similar laws around the country. The New York City Human Rights Law (NYCHRL) cover some gaps left in federal law, which protects against discrimination on the basis of a relatively small list of factors. A decision by a Manhattan federal judge in late 2020, for example, dismissed pregnancy discrimination claims under federal, state, and city law by a father who lost his job after taking paternity leave. It essentially held that he could not bring a claim for pregnancy discrimination because he was never pregnant. The court’s decision does not mention the NYCHRL’s provisions regarding caregiver discrimination, which could cover a father of a newborn.

The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act to include pregnancy discrimination in the definition of sex discrimination. See 42 U.S.C. § 2000e(k). In addition to pregnancy itself, Title VII prohibits discrimination due to childbirth and medical conditions related to either pregnancy or childbirth. The NYCHRL goes a step farther and requires employers to make reasonable accommodations for pregnant and nursing employees.

Federal law acknowledges the role of fathers, or any parent who did not gestate and give birth to a child, in the Family and Medical Leave Act (FMLA). This law requires covered employers to provide unpaid leave to qualifying employees for certain reasons, including caring for a newborn child. The U.S. Supreme Court noted that the statute addresses “mutually reinforcing stereotypes [that] created a self-fulfilling cycle of discrimination” on the basis of sex. Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736 (2003). Employers must provide leave regardless of gender, ensuring “that employers could not evade leave obligations simply by hiring men.” Id. at 737. The FMLA does not, however, address discrimination outside of the context of unpaid family leave.

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New York City pregnancy discrimination laws offer some of the most extensive protections to workers in the whole country. Federal law classifies discrimination on the basis of pregnancy as a form of sex discrimination. State and city law goes further, requiring employers to make reasonable accommodations for pregnant employees and employees with newborn children. The New York City Human Rights Law (NYCHRL) goes further still, requiring employers to provide private, sterile lactation rooms where workers can express breast milk, along with facilities for storing milk while at work. A class action filed in a Brooklyn federal court alleges that the police department failed to provide lactation facilities for employees as required by law. The lawsuit was filed more than a year ago and is in the process of seeking class certification.

Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of pregnancy, childbirth, and related medical conditions in its definition of sex discrimination. The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of familial status, which includes pregnancy, childbirth, and parenthood. It also states that an employer commits an unlawful discriminatory practice when they fail to provide reasonable accommodations for an employee’s pregnancy-related conditions.

A law passed by the New York City Council several years ago added provisions to the NYCHRL regarding accommodations for new parents who are nursing. Employers must provide a “lactation room,” defined as “a sanitary place, other than a restroom,” that is “shielded from view and free from intrusion.” N.Y.C. Admin. Code § 8-102. The room must include a power outlet, a place to sit, and a surface to place a pump and other items. It must be located near a sink or water fountain, and “in reasonable proximity to [an] employee’s work area.” Id. at § 8-107(22)(b)(i).

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Employment laws all over the country protect workers from discrimination based on pregnancy, childbirth, and medical conditions that may arise during pregnancy or after giving birth. New York City pregnancy discrimination attorneys can also use state and city law to demand reasonable accommodations for workers who might need extra restroom breaks, more time to sit down, restrictions on lifting large amounts of weight, and other needs. A 2014 law passed by the New York City Council added provisions regarding reasonable accommodations to the New York City Human Rights Law (NYCHRL). Unfortunately, many employers continue to deny such accommodations to their employees, sometimes with tragic consequences. A female employee of the Metropolitan Transportation Authority (MTA) sued her employer in 2020, alleging that the refusal to provide reasonable accommodations resulted in her miscarriage. The lawsuit is still pending, but the MTA has reportedly agreed to several new accommodations for pregnant workers.

At the state level, the New York State Human Rights Law (NYSHRL) prohibits employment discrimination based on “familial status,” which includes pregnancy. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a). The NYCHRL addresses discrimination by employers because of employees’ “sexual and reproductive health decisions,” which may include the decision to have children. N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

Both city and state law require reasonable accommodations during an employee’s pregnancy and after they give birth. The NYSHRL requires accommodations for “pregnancy-related conditions,” which refers to both conditions “that inhibit[] the exercise of a normal bodily function” and that are generally accepted to be part of pregnancy or childbirth. N.Y. Exec L. §§ 292(21-f), 296(3). The NYCHRL requires an employer to provide reasonable accommodations “that will allow the employee to perform the essential requisites of the job.” N.Y.C. Admin. Code § 8-107(22)(a).

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New York City pregnancy discrimination lawyers often hear from workers who were denied a job opportunity because they were pregnant, or who lost a job or found their hours cut back when they told their employer about their pregnancy. City, state, and federal laws prohibit a wide range of acts by employers that discriminate on the basis of pregnancy, childbirth, or medical conditions related to either. In New York City, employers must also provide reasonable accommodations for pregnant workers and workers who have given birth recently, including a clean and private lactation room on work premises. Many other employment discrimination laws do not require this of employers. In late 2020, the New York City Commission on Human Rights (CHR) published a new proposed rule interpreting and clarifying the city’s pregnancy discrimination laws.

Three antidiscrimination statutes cover New York City, and each one addresses pregnancy discrimination in a different way. At the federal level, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex, and defines “on the basis of sex” to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of “familial status,” using a definition that includes pregnancy. N.Y. Exec. L. §§ 292(26), 296(1)(a). State law also specifically bars employers from forcing a pregnant employee “to take a leave of absence” in many situations. Id. at § 296(1)(g).

The New York City Human Rights Law (NYCHRL) does not identify pregnancy as a distinct protected category, although a recent amendment to the law bars discrimination on the basis of “sexual and reproductive health decisions,” which could include pregnancy. See N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). Both the NYCHRL and the NYSHRL contain provisions for reasonable accommodations. State law requires accommodations for “pregnancy-related conditions,” similar to the way it requires accommodations for employees with disabilities. See N.Y. Exec. L. at §§ 292(21-f), 296(3). City law requires reasonable accommodations for “pregnancy, childbirth, or a related medical condition,” as well as “lactation accommodations.” N.Y.C. Admin. Code § 8-107(22).

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Discrimination on the basis of pregnancy is a serious problem in workplaces all over the country. New York City pregnancy discrimination attorneys help workers who lost their jobs, been demoted, or were placed on unpaid leave when their employers learned that they were pregnant, to name only a few examples of how this type of discrimination can occur. The New York City Human Rights Law (NYCHRL) offers more protections than many anti-discrimination laws. It requires employers to make reasonable accommodations for pregnant employees and employees who have recently given birth. The New York City Commission on Human Rights (NYCCHR) is responsible for enforcing city law, either by bringing actions directly against employers or by authorizing employees to file their own lawsuits. Earlier this year, the NYCCHR announced that it had settled a pregnancy discrimination claim involving reasonable accommodations. The settlement included more than $46,000 in civil penalties and damages for the employee.

At the federal level, the Pregnancy Discrimination Act of 1978 added discrimination based on “pregnancy, childbirth, or related medical conditions” to the definition of sex discrimination found in Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e(k). Federal law is less clear, however, on the issue of reasonable accommodations for pregnancy and childbirth. Many people need adjustments to their work schedule, work environment, or job duties during pregnancy or after giving birth. This may include additional breaks for water or to use the restroom, additional time to sit down, or temporary restrictions on lifting heavy objects. After giving birth, workers who are breastfeeding might need time and a private location to express milk. The NYCHRL requires employers to make reasonable accommodations for these needs. N.Y.C. Admin. Code § 8-107(22).

The employee in the case mentioned above worked as a line cook at a restaurant in New York City. In early 2016, she reportedly notified her supervisors about her pregnancy and told them that she could not lift heavy boxes due to medical restrictions. According to the NYCCHR, the employer refused to accommodate her for the lifting restriction unless she provided medical documentation. The NYCCHR states that this violates city law. The employee filed a complaint with the agency, which launched an investigation of the employer.

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The COVID-19 pandemic is now in its second wave in New York and much of the rest of the country, which has not come close to recovering from the economic impact of the first wave. Earlier this year, New York State established a system of paid sick leave for people who must quarantine because of a COVID-19 diagnosis or possible exposure to the disease. Employers must allow employees to take time off, whether paid or unpaid, under state law in order to go into quarantine. They must allow employees to return to their jobs when their quarantine ends. Despite these precautions and protections, many workers are still experiencing difficulties with their employers. New York City employment attorneys can help people understand their rights in these unusual times, and the state has set up a system for employment complaints related to COVID-19.

New York City and State Employment Laws

The New York City Human Rights Law (NYCHRL) protects workers with caregiving responsibilities from discrimination by their employers. This applies to people who must care for a minor child, or for a family member or someone living in their home who “relies on [them] for medical care or to meet the needs of daily living.” N.Y.C. Admin. Code § 8-102(2). This means that an employer cannot terminate an employee because of their caregiving obligation, nor may they demote them or deny them employment opportunities like promotions because of these responsibilities.

New York City law does not, however, specifically require employers to accommodate an employee’s caregiver duties, such as by allowing them to take additional time off from work. The NYCHRL and the New York State Human Rights Law (NYSHRL) specifically require reasonable accommodations for disability, pregnancy, childbirth, and conditions related to pregnancy or childbirth, but not caregiver status. Id. at §§ 8-107(15), (22); N.Y. Exec. L. § 296(3). “Disability,” as defined by these statutes, may include certain health conditions that put people at additional risk of complications from COVID-19.

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New York City pregnancy discrimination laws serve two functions. They prohibit employers from taking adverse actions because of pregnancy, childbirth, or conditions associated with either; and they require employers to provide reasonable accommodations. Some industries present greater problems for workers than others. This may be based on the nature of the work itself, or the legal relationship between workers and employers. In New York City’s art world, working conditions have long been difficult for people who are pregnant or are parents.

New York City Pregnancy Discrimination Laws

Both Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law (NYSHRL) protect workers against pregnancy discrimination, but neither statute uses that precise term. Title VII prohibits discrimination on the basis of sex, and defines “on the basis of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The NYSHRL bars discrimination based on “familial status,” defined to include “any person who is pregnant or has a child.” N.Y. Exec. L. §§ 292(26)(a), 296(1)(a).

The NYSHRL and the New York City Human Rights Law (NYCHRL) require employers to provide reasonable accommodations for pregnant employees. The NYCHRL goes a step further by requiring specific accommodations for workers who have recently given birth. Under the NYSHRL, employers must make reasonable accommodations for “pregnancy-related conditions” in order to allow workers “to perform in a reasonable manner the activities involved in [their] job or occupation.” Id. at §§ 292(21-e), (21-f); 296(3). The NYCHRL sets similar requirements, but also requires employers to provide a “sanitary place, other than a restroom,” which employees can use to express breast milk in privacy, along with a refrigerator to store expressed milk. N.Y.C. Admin. Code §§ 8-102, 8-107(22).

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Pregnancy discrimination remains a serious problem throughout the country, despite multiple laws intended to prevent and penalize such practices. New York City pregnancy discrimination attorneys can draw upon federal laws that prohibit discrimination based on pregnancy and childbirth, and municipal laws that require a wide range of accommodations in the workplace. Federal law provides family leave for new parents, although it is unpaid and limited in scope despite its lofty ambitions. New York State makes up some of the difference with a new paid family leave program.

Pregnancy Discrimination vs. Accommodations for Pregnancy

The term “pregnancy discrimination” can encompass both:

1. Adverse actions taken against an employee because of pregnancy, childbirth, or a medical condition associated with either; and
2. Failure to provide reasonable accommodations for pregnant workers and workers who have recently had a child.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, includes discrimination based on “pregnancy, childbirth, or related medical conditions” in its definition of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). The New York State Human Rights Law (NYSHRL) prohibits discrimination on the basis of “familial status,” and includes pregnancy, childbirth, and the acquisition of custody of a minor child in its definition of that term. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a). Title VII makes no mention of reasonable accommodations for pregnancy or childbirth.

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Pregnancy discrimination is against the law in New York City. Employment discrimination attorneys can bring claims under the laws of New York City, New York State, or the United States. It is unlawful for an employer to refuse to hire someone, or to rescind an offer of employment, because the person is pregnant or has recently given birth. Other unlawful acts include terminating a person ‘s employment, forcing them to take unpaid leave, or cutting their shifts because of pregnancy or childbirth. Identifying when this sort of discrimination has occurred can be difficult, since employers rarely state outright that this is the reason for the adverse action. Proving New York pregnancy discrimination under city, state, or federal law therefore often requires evidence showing that the action was out of the ordinary.

The Law Prohibits Pregnancy Discrimination

At the federal level, the Pregnancy Discrimination Act (PDA) of 1978 prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions,” including this in its definition of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). This covers adverse actions taken against an employee, but does not require employers to make accommodations for pregnant employees and those who have given birth recently. Some medical conditions associated with pregnancy and childbirth might qualify as a “disability” under the federal Americans with Disabilities Act, which requires reasonable accommodations.

The New York City Human Rights Law (NYCHRL) implicitly includes the sort of pregnancy discrimination described by the PDA in its prohibition of gender discrimination. See N.Y.C. Admin. Code § 8-107(22)(c). The statute explicitly requires employers to provide reasonable accommodations based on “pregnancy, childbirth, or related medical condition[s],” and to provide adequate facilities for lactating employees who need to express breast milk. Id. at §§ 8-107(22)(a), (b).

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Federal law prohibits various discriminatory acts by employers, such as discrimination on the basis of pregnancy or childbirth, but its protections have limitations. Title VII of the Civil Rights Act of 1964 only applies to employers with fifteen or more employees. 42 U.S.C. § 2000e(b). It also does not apply to religious organizations with regard to “the employment of individuals of a particular religion.” Id. at § 2000e-1(a). The statute does not provide guidance on how to determine whether an employer is a religious organization or not. A number of for-profit businesses, rather than churches or other expressly religious organizations, have claimed religious exemptions in recent years. A proposed rule published by the U.S. Department of Labor (DOL) could expand the definition of “religious organization.” This can be an issue for New York City pregnancy discrimination attorneys when an employer claims a religious exemption from antidiscrimination laws.

Title VII prohibits pregnancy discrimination, which includes “pregnancy, childbirth, [and] related medical conditions,” as a type of sex discrimination. Id. at § 2000e(k). In 1965, the president issued Executive Order (EO) 11246, which expanded the requirements of Title VII to all federal contractors, regardless of their number of employees. “Religious entities,” however, are exempt on the same basis as the exemption from Title VII. 41 C.F.R. § 60-1.5(a)(5). This means that, for example, an expressly Christian organization may refuse to hire individuals who are not Christian for certain positions. A similar exemption applies to religious schools. See id. at § 60-1.5(a)(6).

The “ministerial exception” provides another exemption from antidiscrimination laws for religious organizations. It states that religious organizations are not bound by antidiscrimination laws with regard to “ministers.” For example, a church can refuse to hire a person as a priest or pastor who is not a part of that church’s religion. Recent court decisions, however, seem to have expanded the definition of “minister.” In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), the Supreme Court affirmed the dismissal of a teacher’s disability discrimination lawsuit, finding that her position with the school was “ministerial.” The Second Circuit recently affirmed that the ministerial exception barred a former Catholic school principal’s sex discrimination lawsuit. Another court, however, found that the exception does not apply in a pregnancy discrimination lawsuit brought by a college professor.
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