Articles Posted in Pregnancy Discrimination

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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Anti-discrimination laws in New York and around the country prohibit discrimination because of pregnancy, childbirth, and conditions directly related to either. The laws that address discrimination, such as Title VII of the Civil Rights Act of 1964, do not necessarily require employers to provide that person with reasonable accommodations, such as light duty, more frequent restroom breaks, or the opportunity to pump breast milk. Both the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) address reasonable accommodations, but many state and local statutes do not. The Americans with Disabilities Act (ADA) of 1990, as amended about 10 years ago, requires accommodations for some conditions related to pregnancy and childbirth. The plaintiffs in a Kentucky pregnancy discrimination lawsuit, which resulted in a settlement several years ago, are now advocating for changes in their state’s law regarding accommodations for pregnant employees, which would then more closely resemble New York pregnancy discrimination laws.

Title VII, as amended by the Pregnancy Discrimination Act of 1978, prohibits employment discrimination on the basis of sex, and it includes “pregnancy, childbirth, or related medical conditions” in its definition of “on the basis of sex.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). It makes no mention of reasonable accommodations. Both the NYSHRL and NYCHRL state that an employer commits an “unlawful employment practice” by failing to provide a reasonable accommodation. N.Y. Exec. L. § 296(3), N.Y.C. Admin. Code § 8-107(22). The NYSHRL defines a “reasonable accommodation” as something that allows an employee “to perform in a reasonable manner the activities involved in the job.” N.Y. Exec. L. § 292.

Title I of the ADA does not specifically identify pregnancy as a “disability.” Changes to the law in the ADA Amendments Act (ADAAA) of 2008 have led the Equal Employment Opportunity Commission (EEOC) to determine that pregnant workers may be entitled to reasonable accommodations under the ADA. The agency has also found that the ADAAA requires it to construe “the definition of ‘disability’…broadly in favor of expansive coverage.” 29 C.F.R. § 1630.1(c)(4).

Discrimination in employment on the basis of pregnancy, childbirth, and medical conditions related to either is unlawful under federal law and most state anti-discrimination laws. Unfortunately, many of these laws do not protect pregnant employees and employees who have recently given birth from other issues that may arise in the workplace. Fewer than half of the states in the U.S. require employers to make reasonable accommodations for pregnancy and related conditions, such as extra bathroom breaks, adequate seating, or a private area to allow employees to pump breast milk. New York is one of those states, but the failure of a proposed bill in another state, which would have enacted similar protections, shows that there is still much work to do nationwide.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits pregnancy discrimination across the country. This means that an employer cannot fire or refuse to hire an individual solely on the basis of the above factors, nor may they require a pregnant employee to take unpaid leave or reduce their work hours without a valid reason directly related to a particular employee’s job duties. At the state level, the New York State Human Rights Law (NYSHRL) also prohibits pregnancy discrimination, as does the New York City Human Rights Law (NYCHRL).

Federal law contains no express provisions requiring reasonable accommodations for pregnant workers or those who have recently given birth. Some, but far from all, conditions related to pregnancy and childbirth may fall under the Americans with Disabilities Act. Many state laws regarding disability discrimination may also cover some pregnancy-related conditions. At least 18 states and the District of Columbia have enacted laws specifically requiring reasonable accommodations in the context of pregnancy and childbirth.

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In 2016, New York City amended its anti-discrimination statute to prohibit discrimination in employment based on caregiver duties. Several state and federal employment laws address discrimination on the basis of certain caregiving responsibilities, but New York City’s law covers a much wider range of people. Few, if any, cases interpreting this law have made their way through the courts in the last year. A look at a few New York court decisions that pre-date the new law, however, can provide an idea of where legal protection for caregivers was needed.

The New York City Human Rights Law (NYCHRL) protects employees from discrimination on the basis of “caregiver status.” N.Y.C. Admin. Code § 8-107(1)(a). It defines a “caregiver” as someone “who provides direct and ongoing care for a minor child or a care recipient.” Id. at § 8-102(30)(a). A “care recipient” is either a “covered relative” or someone living with the caregiver, who has a disability and “relies on the caregiver for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). Finally, a “covered relative” could be a child, spouse or partner, sibling, parent, grandparent, grandchild, or mother- or father-in-law. Id. at § 8-102(30)(c).

A “caregiver,” under the NYCHRL, may therefore include not only parents but also people caring for a sick or disabled parent or other relative, regardless of sex or gender. This is an important feature of the statute, since caregiver discrimination has often had a close relation to discrimination on the basis of sex. A New York City federal court ruled on a class action alleging caregiver discrimination under anti-discrimination and equal pay statutes in Kassman v. KPMG, LLP, 925 F.Supp.2d 453 (S.D.N.Y. 2013). The plaintiffs alleged multiple discriminatory practices, including “treating pregnant employees and mothers differently from non-pregnant employees, male employees, and non-caregivers.” Id. at 460. Unfortunately, the court dismissed several of the claims, finding that “caregiver…discrimination [is] not actionable under” state and federal equal pay laws. Id. at 473.

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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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Employment 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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