Articles Posted in Pregnancy Discrimination

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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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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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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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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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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Employees who are pregnant or have recently given birth are protected from discrimination under multiple statutes. New York City pregnancy attorneys may draw on two federal statutes: Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978; and the Family and Medical Leave Act (FMLA) of 1993. A plaintiff recently obtained a $500,000 judgment against her former employer in a lawsuit that asserted claims for pregnancy discrimination under both statutes. Ota v. Trustees of the Univ. of Pa., et al, No. 2:18-cv-01651, complaint (E.D. Pa., Apr. 19, 2018).

Title VII prohibits employment discrimination on the basis of five factors: “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The PDA amended Title VII’s definition of discrimination “on the basis of sex” to include discrimination based on “pregnancy, childbirth, or related medical conditions.” Id. at § 2000e(k). The FMLA, meanwhile, requires covered employers to provide qualifying employees with a certain amount of unpaid leave for medical purposes, either for themselves or for a family member. Employers may not “interfere with, restrain, or deny the exercise of” a right provided by this statute, nor may they discriminate or retaliate against an employee who complains about an alleged violation. 29 U.S.C. § 2615(a).

The plaintiff in Ota is a “pathologist and clinical microbiologist.” Ota, complaint at 1. She held two positions prior to giving birth to a child in 2015: Director of the Clinical Microbiology Lab at the Children’s Hospital of Philadelphia (CHOP), and Assistant Professor in the Pathology and Laboratory Medicine Department at the University of Pennsylvania. Id. She states in her complaint that she was hired by both employers at about the same time in 2011, although she was not promoted to the position of laboratory director at CHOP until 2012.

New York City employees are expressly protected from discrimination on the basis of pregnancy under state and federal law. City and state law make up for a gap in federal protection by requiring certain reasonable accommodations for workers who are pregnant or have recently given birth. One area where state and city law do not provide protection, as New York City pregnancy discrimination attorneys have often encountered, is in the area of accommodations for breastfeeding employees. Federal law requires employers to provide unpaid breaks and a private location for workers to express breast milk. About a year ago, New Jersey amended its antidiscrimination statute to include breastfeeding as a distinct protected category, and to require reasonable accommodations for breastfeeding employees.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, defines sex discrimination to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) identifies familial status as a protected category, defining it to include being “pregnant or ha[ving] a child .” N.Y. Exec. L. §§ 292(26), 296(1)(a). The New York City Human Rights Law (NYCHRL) does not specifically include pregnancy as a protected category. It does, however, protect against employment discrimination based on “caregiver status,” defined to include “provid[ing] direct and ongoing care for a minor child.” N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a).

Pregnant employees, and those who have recently given birth, often require accommodations in the workplace, such as additional breaks for restroom use and to drink water, lifting restrictions and other physical limitations, and changes to shift schedules. Federal law does not require reasonable accommodations in cases of pregnancy or childbirth, except with the possible exception of conditions that meet the definition of “impairment” under the Americans with Disabilities Act. See 29 C.F.R. Appendix to § 1630(h). State law requires employers to provide reasonable accommodations for “pregnancy-related conditions,” generally defined as conditions “that inhibit[] the exercise of a normal bodily function.” N.Y. Exec. L. §§ 292(21-f), 296(3)(a). City law requires reasonable accommodations that “allow the employee to perform the essential requisites of the job.” N.Y.C. Admin. Code § 8-107(22)(a). Both laws include “undue hardship” exceptions for employers.
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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.
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Employment discrimination on the basis of pregnancy, childbirth, and medical conditions related to either is considered unlawful sex discrimination under antidiscrimination laws in New York City and elsewhere around the country. The extent of protections offered by these statutes is a matter of ongoing dispute among New York employment attorneys and in the courts. A lawsuit originally filed last year alleges that a company’s attendance policy discriminated against pregnant employees, both intentionally and through disparate impact. Hills, et al v. AT&T Mobility Services LLC, No. 3:17-cv-00556, 2d am. complaint (N.D. Ind., May 14, 2018).

The Pregnancy Discrimination Act (PDA) of 1978 amended the definition of discrimination “on the basis of sex” in Title VII of the Civil Rights Act of 1964 to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Unlawful pregnancy discrimination includes overt acts, such as terminating an employee upon learning of their pregnancy, or forcing a pregnant employee to take unpaid leave. It can also include “disparate impact” discrimination, in which a seemingly neutral policy or practice violates Title VII if it has an adverse and disproportionate impact on a protected group.

In addition to prohibiting disability discrimination, the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees with disabilities. 42 U.S.C. §§ 12111(9), 12112(b)(5)(A); 29 C.F.R. § 1630.9. The statute provides a broad definition of “disability,” including both an actual condition that impairs life activities, and the perception by others of having such an impairment. 42 U.S.C. § 12102(1)(C). This definition does not expressly include pregnancy, but amendments to the ADA, along with interpretations by the Equal Employment Opportunity Commission (EEOC), may allow various conditions associated with pregnancy and childbirth to fall under the definition of “disability.”
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Pregnancy discrimination in employment violates New York City’s antidiscrimination law, New York state law, and federal law. This means that employers commit an unlawful employment practice when they refuse to hire someone, fire them, force them to take unpaid leave, deny them promotions or other opportunities, or subject them to other disparate treatment because they are pregnant, have recently given birth, or are dealing with a medical condition related to either pregnancy or childbirth. These antidiscrimination laws also, to greatly varying degrees, require employers to make “reasonable accommodations” related to pregnancy and childbirth. These might include extra bathroom breaks, lifting restrictions, and opportunities to pump breast milk during breaks. A new law passed by the New York City Council, Int. No. 804-2015-A, will further protect workers’ rights by requiring employers to engage in “cooperative dialogue” with any employee who requests an accommodation because of pregnancy, childbirth, and other conditions or situations. The law is set to take effect in October 2018.

Federal law prohibits employment discrimination because of sex and multiple other factors, and includes “pregnancy, childbirth, or related medical conditions” in its definition of “because of sex.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). State law includes sex and “familial status” as protected categories, and defines “familial status” to include being pregnant and having one or more children. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a). The New York City Human Rights Law (NYCHRL) does not specifically identify pregnancy discrimination as a distinct protected category or as a form of sex discrimination, but it makes reference to “provision[s] of law relating to sex discrimination or pregnancy.” N.Y.C. Admin. Code § 8-107(22)(c).

Prohibitions against pregnancy discrimination, generally meaning disparate treatment of pregnant employees and those who have recently given birth, do not necessarily include a duty to provide reasonable accommodations. The fact that an employer cannot fire an employee for becoming pregnant might not mean that the employer must allow that employee extra restroom breaks. State and city law in New York City specifically include requirements for reasonable accommodations, making it an unlawful employment practice to refuse to provide accommodations that will enable an employee to do their job. N.Y. Exec. L. § 296(3), N.Y.C. Admin. Code § 8-107(22)(a). Federal law does not specifically mention accommodations for pregnancy, childbirth, or related conditions, but the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act of 2008, covers some conditions associated with pregnancy and childbirth.
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