Pregnancy Discrimination Category Archives — New York Employment Attorney Blog Published by New York Employment Lawyers

March 11, 2020

New York City Still Struggles with Pregnancy Discrimination, Despite Progress

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.

February 29, 2020

Pregnancy Discrimination in New York City Workplaces Can Sometimes Be Difficult to Identify

by Phillips & Associates

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).

September 20, 2019

Federal Government Considers New Rule on Religious Exemptions from Employment Antidiscrimination Laws

by Phillips & Associates

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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August 16, 2019

New York City Commission on Human Rights Identifies Gaps in Pregnancy Discrimination Protection for Many Domestic Workers

by Phillips & Associates

Employees who are pregnant, or who have recently given birth, have gained significant legal protections in recent years in New York City. New York pregnancy discrimination attorneys nevertheless encounter ongoing violations of city, state, and federal law. This includes not only direct adverse actions like demoting or terminating an employee because they become pregnant, but also failure or refusal to provide reasonable accommodations to pregnant or nursing employees. A recent report by the New York City Commission on Human Rights (CHR) found gaps in the law’s coverage that allow pregnancy discrimination to occur in certain situations. Recent amendments to the New York City Human Rights Law (NYCHRL) extend the statute’s reach to all employers in claims for sexual harassment, but for all other claims, it only applies to employers with four or more employees. N.Y.C. Admin. Code § 8-102. The CHR noted in its report that this leaves many domestic workers, meaning people employed in private homes, without legal protection.

Federal, state, and local statutes affecting New York City take different approaches to pregnancy discrimination. The definition of sex discrimination in Title VII of the Civil Rights Act of 1964 includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 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 defines that term to include pregnancy. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a).

The NYCHRL does not specifically mention pregnancy or childbirth as a protected category for antidiscrimination purposes. It addresses those issues through its prohibitions on caregiver discrimination, which applies to parents of minor children, and on discrimination based on sexual and reproductive health decisions. N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). The statute also requires employers to provide reasonable accommodations for needs associated with pregnancy and childbirth. Id. at § 8-107(22). Amendments enacted in 2018 require covered employers to provide lactation rooms for employees.

July 24, 2019

Marjorie Mesidor Discusses Rights a Pregnant Employee Has in New York with Super Lawyers

by Phillips & Associates

Marjorie Mesidor is a partner at Phillips & Associates who focuses her practice on the representation of individuals in employment discrimination lawsuits. Ms. Mesidor has been deemed a Rising Star and a Top Woman Attorney by Super Lawyers, a rating service that recognizes outstanding attorneys, on numerous occasions. Ms. Mesidor recently advised Super Lawyers as to the rights the law affords a pregnant woman working in New York.

Pregnancy Discrimination Act

It is an unfortunate fact that many women face discrimination in the workplace due to pregnancy. As Ms. Mesidor indicated, however, the federal Pregnancy Discrimination Act (PDA) protects pregnant women from discriminatory acts in the workplace. Thus, if you are pregnant, your employer is not permitted to deal with you differently than other employees simply because you are pregnant. Notably, the PDA is only applicable in cases where the employer has at least fifteen employees. There are additional state and local laws that afford protection from discrimination to pregnant workers as well, however. Ms. Mesidor noted some examples of discrimination pregnant women experience in the workplace include reduced pay, a reduction in duties or denial of a promotion, being reassigned to another position, and termination.

Accommodations for Health Issues that Arise During Pregnancy

Many women experience complications or other health issues during pregnancy, that require them to work a modified schedule. As Ms. Mesidor noted, under both state and federal disability laws, pregnancy is a short-term disability. As such, pregnant women can request reasonable accommodations during their pregnancies, and in many cases, the employer is required to provide such accommodations. Examples of accommodations generally requested due to pregnancy include lighter duty and shorter or adjusted hours. If you are pregnant and your request for a reasonable accommodation from your employer was denied, you may have grounds to pursue a discrimination claim against your employer.

May 1, 2019

New York City Council Amends Law to Prohibit Employment Discrimination Based on Sexual and Reproductive Health Decisions

by Phillips & Associates

The New York City Human Rights Law (NYCHRL) is one of country’s the most comprehensive laws dealing with discrimination in employment, housing, public accommodations, and other areas. On May 20, 2019, a new law will go into effect that adds “sexual and reproductive health decisions” to the law’s list of protected categories. Some employers have fought against legal requirements involving matters like contraception in recent years. Similar arguments have appeared in support of employers who terminate, demote, or otherwise penalize employees for some of the most private acts in which people engage, or some of the most personal decisions that people can make.

The NYCHRL already prohibits employers from discriminating on the basis of factors like gender, marital or partnership status, and sexual orientation. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines “gender” to include “actual or perceived” characteristics, including gender identity and gender expression. Id. at § 8-102. This provides express protection against discrimination based on transgender status, which is missing in federal law.

Existing law may apply to some adverse employment actions arguably based on “sexual and reproductive health decisions.” The Second Circuit Court of Appeals reinstated a lawsuit alleging sex discrimination under federal, state, and New York City law. The plaintiff became pregnant before getting married and returned from her honeymoon “visibly pregnant.” She alleged that her employer fired her because it “disapprove[d] of [her] pre-marital pregnancy.”
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April 30, 2019

Understanding Paid Family Leave in New York

by Phillips & Associates

The United States is one of the only countries in the world with no provisions for paid family leave at the national level. The Family and Medical Leave Act (FMLA) provides for unpaid leave nationwide, but it only applies to qualifying employees of covered employers. New York is one of only a handful of states or territories in the U.S. to have enacted laws requiring paid family leave. When New York’s Paid Family Leave Act (PFLA) took effect in 2018, this state joined California, New Jersey, and Rhode Island. The District of Columbia and the State of Washington have also enacted paid family leave laws, which are scheduled to take effect in 2020. New York City employment attorneys may be accustomed to handling claims of discrimination and retaliation under the FMLA. The PFLA also contains provisions protecting employees who exercise their rights to paid leave.

“Family leave” generally refers to time away from work to care for a newborn or newly-adopted child, to care for a family member with a serious illness or injury, and to provide certain other forms of care for family members. Under laws mandating family leave, employers must hold a person’s job for the approved leave period, and they typically must continue to provide benefits like health insurance. Employers are prohibited from discriminating or retaliating against an employee who uses earned leave time.

Since the FMLA does not require employers to pay their employees while they are on leave, the statute does not have to address issues of funding. A common objection to mandatory paid family leave is that it is unfair to employers to require them to pay employees for time when they are not working. The PFLA makes paid family leave part of the state’s disability insurance program, which is governed by the New York Workers’ Compensation Law. Paid family leave in New York is therefore only available to employees who are eligible for benefits from the state insurance fund. See N.Y. Work. Comp. L. § 76(2).
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March 29, 2019

Lactation Rights and the Right to Pump Breast Milk in New York City Workplaces

by Phillips & Associates

New York City pregnancy discrimination attorneys can assert claims for their clients under federal, state, and city law. Federal law specifically defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, and medical conditions related to either. New York City law provides similar protections, but goes further. Employers in New York City must provide reasonable accommodations to pregnant employees, as well as those who have recently given birth. They are also prohibited from discriminating against workers based on caregiving responsibilities for minor children. In 2018, the New York City Council enacted two new laws that require employers to accommodate breastfeeding employees. They must provide employees with a location to express breast milk, as well as sufficient time to do so. This sort of accommodation is lacking in many antidiscrimination laws around the country. The Commission on Human Rights (CHR) has published guidelines on its website regarding employees’ lactation rights.

Pregnancy discrimination often takes the form of a direct adverse action on the basis of an employee’s or job applicant’s pregnancy. An employer may decide not to hire an applicant because they are pregnant or have recently given birth. They might terminate or demote an employee upon learning about a pregnancy, or compel a pregnant employee to take unpaid leave. Other acts that could constitute pregnancy discrimination include reassignment to less favorable shifts or job duties, without any reasonable relationship to the employee’s pregnancy and against the employee’s wishes.

Another approach to addressing the rights of pregnant workers involves providing accommodations that enable them to continue working. Pregnant individuals often need drink water and use the restroom more often, for example. They could be subject to lifting restrictions, or under a doctor’s instruction to avoid strenuous physical activity. With some accommodations by their employer, most pregnant workers can continue to work for a substantial portion of their pregnancy.
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March 26, 2019

New York City Commission on Human Rights Holds Public Hearing on Pregnancy and Caregiver Discrimination

by Phillips & Associates

Pregnancy and caregiver discrimination can take many forms, such as firing someone upon learning of their pregnancy, denying a pregnant employee a reasonable accommodation to allow them to keep working, or denying opportunities to employees with childcare responsibilities. As New York City discrimination lawyers, we have seen near-countless examples of adverse employment actions based on pregnancy, childbirth, and caregiver duties. The New York City Human Rights Law (NYCHRL) goes further than federal law and most city and state laws in protecting workers. The city’s Commission on Human Rights (CHR) held a public hearing in January 2019 to see how it can do even better.

At the federal level, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a). It defines that term to include “pregnancy, childbirth, or related medical conditions.” Id. at § 2000e(k). The NYCHRL prohibits employment discrimination on the basis of multiple factors, including gender. N.Y.C. Admin. Code § 8-107(1)(a). It does not expressly include pregnancy or childbirth in its definition of “gender,” but it does include “gender-related characteristic[s],” which could be construed to include pregnancy and childbirth. Id. at § 8-102.

The NYCHRL goes further than Title VII in its number of protected categories, as well as the types of protection offered to pregnant workers and those who have recently given birth. Employers are required to provide reasonable accommodations to an employee based on “pregnancy, childbirth, or a related medical condition” to “allow [them] to perform the essential requisites of the job.” Id. at § 8-107(22)(a). To be considered “reasonable,” the accommodation must not “cause undue hardship” to the employer’s business. Id. at § 8-102. Amendments to the NYCHRL enacted in 2018 expand employer’s responsibilities to include accommodating breastfeeding workers’ need to express milk during work shifts.
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March 6, 2019

Complaint Alleges Discrimination by New York City Museum Based on Pregnancy, Caregiver Status, Other Factors

by Phillips & Associates

Workers in New York City are protected from discriminatory actions by their employers based on a wide range of factors. New York City discrimination attorneys can bring claims on behalf of clients in state or federal court, or with an administrative agency like the city’s Commission on Human Rights (NYCHR). A complaint filed with the NYCHR last year alleges that a museum in Queens rescinded a job offer when it learned that the complainant had recently given birth. The complainant in Columbus v. MoMA PS1, et al asserts claims under city law for gender, pregnancy, and caregiver discrimination.

The New York City Human Rights Law (NYCHRL) prohibits discrimination on the basis of gender and caregiver status, among other categories. N.Y.C. Admin. Code § 8-107(1)(a). The statute defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102. The term “care recipient” has an extensive definition, but the relevant provision for the Columbus case involves caregiving responsibilities for a “minor child,” defined as a child under the age of eighteen.

Pregnancy is not expressly included in the NYCHRL’s list of protected categories. Neither is it included in the definition of sex discrimination, like in Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e(k). The NYCHRL does, however, require employers to provide “reasonable accommodations” to employees who are pregnant or have recently given birth, which 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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