Pregnancy Discrimination Category Archives — Page 2 of 10 — New York Employment Attorney Blog Published by New York Employment Lawyers

February 21, 2018

Plaintiffs in Successful Pregnancy Discrimination Lawsuit Seek to Change State Law

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).

June 28, 2017

Reasonable Accommodations for Pregnant Employees Are Still Not Included in Most Anti-Discrimination Statutes

by Phillips & Associates

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.

June 8, 2017

New York City’s Caregiver Discrimination Statute Filled Several Important Gaps in Anti-Discrimination Law

by Phillips & Associates

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.

May 10, 2017

Lawsuit Alleges Pregnancy Discrimination, Sexual Harassment Against Media Company

by Phillips & Associates

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).

April 27, 2017

New York City Lawsuit Includes Allegations of Sexual Harassment and Pregnancy Discrimination

by Phillips & Associates

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.

February 2, 2017

New York City Employment Laws Help Employees Assert Their Rights on a Level Playing Field

by Phillips & Associates

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.

January 12, 2017

Paid Family Leave Statute to Take Effect in New York in 2018

by Phillips & Associates

Workers 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.

November 9, 2016

Pregnancy Discrimination Laws Might Not Protect Employees Who Seek Infertility Treatment from Discrimination

by Phillips & Associates

Pregnancy 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.

August 31, 2016

Pregnancy Discrimination Can Occur in Policies Seemingly Intended to Protect Pregnant Workers

by Phillips & Associates

Pregnancy 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.

August 17, 2016

Jury Awards $550,000 in Damages in Pregnancy Discrimination Case

by Phillips & Associates

Federal, 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.