Articles Posted in Pregnancy Discrimination

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.

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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.

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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.

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Employment statutes at the federal, state, and city levels in New York City protect workers against certain types of discrimination related to family responsibilities. These laws protect employees from adverse actions by employers, but they do not address the conflict between needing to care for a family member and needing to go to work to earn a living. The U.S. lags far behind most of the world’s countries when it comes to paid family leave. The New York State Assembly passed a bill in February 2016 that would provide paid family leave through the state’s disability insurance program, but its companion bill is still pending in the Senate.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits employers from discriminating on the basis of pregnancy, childbirth, and certain medical conditions related to either. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) contain similar provisions. N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(22). Recent amendments to the NYCHRL will also protect workers with caregiving responsibilities, such as for a minor child or a sick or disabled relative, from employment discrimination.

None of the above-referenced laws, however, provide for paid leave for employees due to pregnancy, childbirth, or caregiver responsibilities. The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., requires unpaid leave for qualified employees of covered employers, but that is as far as U.S. federal law goes.

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Legislation signed by the mayor of New York City in January 2016, which will take effect in May, amends the New York City Human Rights Law (NYCHRL) to protect “caregivers” against employment discrimination. Int. 108-A (N.Y.C. Council, Jan. 5, 2016). The new law defines “caregiver” quite broadly, and it prohibits discrimination by employers because of an employee’s “actual or perceived status as a caregiver.” State law offers some protection for workers with caregiving responsibilities, but not as much as the NYCHRL will once the new law takes effect. Title VII of the Civil Rights Act of 1964, the federal anti-discrimination statute, does not provide much protection in this regard, as a Manhattan federal court made clear several years ago in EEOC v. Bloomberg, L.P., 778 F.Supp.2d 458 (S.D.N.Y. 2011).

The recently enacted amendments to the NYCHRL define a “caregiver” as someone who “provides direct and ongoing care for a minor child or care recipient.” N.Y.C. Admin. Code § 8-102(30)(a), as amended by Int. 108-A. “Care recipients” include individuals residing with the caregiver and “covered relatives,” who do not have to live in the caregiver’s household. Id. at § 8-102(30)(b). A care recipient is someone who “relies on the caregiver for medical care or to meet the needs of daily living.” Id. The term “covered relative” includes most familial relationships. Id. at § 8-102(30)(c). The term “caregiver” can therefore apply to parents and legal guardians of minor children, people caring for an elderly, disabled, or sick relative, and a wide range of other scenarios.

The Equal Employment Opportunity Commission (EEOC) filed suit against Bloomberg based on allegations of a pattern or practice of discrimination against employees who became pregnant and took maternity leave. The lawsuit asserted claims for pregnancy discrimination, a well-established area of law under Title VII and the Pregnancy Discrimination Act (PDA) of 1978. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The case amounted to a claim that the defendant systematically discriminated against employees with new parental caregiving responsibilities. The court rejected this argument.

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Both New York City and the state of New York have recently enacted laws expanding protections against workplace discrimination based on issues affecting workers’ family or home lives. New York City’s law regarding caregiver discrimination, or “family responsibilities discrimination,” assists the many people who must juggle full-time employment with caring for an elderly or disabled relative, or another person living in their home. New York state law now prohibits employment discrimination on the basis of “familial status.” While these two laws might sound similar, they protect workers based on different criteria. Both laws offer greater protection than federal anti-discrimination law, although the Equal Employment Opportunity Commission (EEOC) offers guidance on how federal law might be able to help.

The New York City Human Rights Law (NYCHRL), under amendments passed by the City Council in January 2016 that take effect in May, applies a very broad definition of “caregiver.” It includes anyone who provides “direct and ongoing care” for either a “minor child” or a “care recipient.” N.Y.C. Admin. Code § 8-102(30)(a). The latter group, “care recipients,” consists of relatives or other people residing with the caregiver who “rel[y] on the caregiver for medical care or to meet the needs of daily living.” Id. at § 8-102(30)(b). The statute does not specify that the minor child under the caregiver’s care must be biologically or legally related to the caregiver. It only states that the care provided to the child must be “direct and ongoing.”

Caregiver status will become a protected category under the NYCHRL once the new law takes effect, meaning that employers may not discriminate against employees based solely on their caregiver responsibilities. N.Y.C. Admin. Code § 8-107(1)(a). Employers are also prohibited from inquiring about a job applicant’s caregiver status, and from stating that caregiver status is a factor in hiring decisions. Id. at § 8-107(1)(d).

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A wide range of laws, collectively known as the Women’s Equality Act, is scheduled to take effect in January 2016. The New York State Legislature passed numerous bills in 2015, and Governor Cuomo signed them on October 21. Among the new laws are three that are of particular interest to our practice. One bill amends the New York State Human Rights Law (NYSHRL), N.Y. Exec. L. § 290 et seq., to expand the court system’s ability to address sexual harassment complaints. Another bill requires employers to provide reasonable accommodations to pregnant employees. Finally, a bill adds “familial status” as a protected category under the anti-discrimination provisions of the NYSHRL.

Sexual Harassment

The NYSHRL only applies, in most situations, to employers with four or more employees. N.Y. Exec. L. § 292(5). This means that employees of a business or individual with three or fewer total employees may not seek remedies for employment discrimination, sexual harassment, and other unlawful employment practices.

A bill passed by the New York State Senate on January 12, 2015 as S. 2, and by the Assembly as A. 5360 on May 5, amends the NYSHRL’s definition of “employer.” It expands the application of the NYSHRL to all employers, regardless of number of employees, but only for sexual harassment claims. Claims for other types of discrimination are still limited to employers with four or more employees.

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Under federal employment law, sexual harassment and pregnancy discrimination are both considered to be forms of unlawful discrimination on the basis of sex or gender. The laws of New York and New York City deal with the issues somewhat differently, while still recognizing the close relationship between the two. Both types of conduct involve disparate treatment of an employee based on sex, as demonstrated by a lawsuit currently pending in a New Jersey state court. Russo v. Robert Wood Johnson Health Sys., No. L-003497-15, complaint (N.J. Super. Ct., Middlesex Co., Jun. 16, 2015). The plaintiff describes a pattern of sexual harassment that abruptly turned to harassment based on her pregnancy.From 2008 to 2015, the plaintiff worked for a New Jersey hospital. She alleges that her supervisor subjected her to ongoing sexual harassment during a period of about two years, but his conduct changed when he learned about her pregnancy in June 2013. Instead of unwelcome sexual remarks, he allegedly turned to “disparaging and unwarranted comments about her work performance.” The plaintiff claims that he warned her that, by taking maternity leave from January to July 2014, she risked losing her job.

After returning to work, the plaintiff claims that she was initially allowed to use her private office to pump breast milk during the work day, but the hospital’s HR director withdrew this permission. She was instructed to use a lactation room in a different building. The room was too far from her own office, she claims, to allow her to use it during her breaks. After the hospital terminated her in June 2015, the plaintiff filed suit against the hospital and several hospital officials. In addition to claims of sexual harassment and pregnancy discrimination, she alleges that the withdrawal of permission to use her office to pump breast milk was retaliation for reporting the supervisor’s alleged harassment.

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Federal law prohibits employers from discriminating against an employee because they are pregnant, have recently given birth, or are dealing with medical issues directly arising from pregnancy or childbirth. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, defines this as a form of unlawful discrimination on the basis of sex. 42 U.S.C. § 2000e(k). Pregnancy discrimination includes a wide range of possible acts, but an unfortunately common scenario involves termination by an employer upon, or shortly after, learning of an employee’s pregnancy. A recently filed federal lawsuit alleges this sort of situation, except with an added twist—it claims that the defendant employer fired the plaintiff twice during the course of her pregnancy. Lucas v. Service Boss, Inc., No. 3:15-cv-01522, complaint (M.D. Pa., Aug. 5, 2015).

According to the plaintiff’s complaint, the defendant engages in the business of providing various services, “including janitorial, plumbing, landscaping, snow removal,…and many more.” Id. at 2.  The plaintiff began working for the defendant in February 2014. She does not identify her job title or describe her job duties in her complaint. The defendant terminated her in April 2014 while she was pregnant, allegedly due to her pregnancy. She states in her complaint that the defendant reinstated her but terminated her again two months later, in June 2014.

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The United States offers a variety of legal protections for employees during pregnancy and after childbirth, but in many ways, our laws fall far short of much of the rest of the world. Federal laws, as well as state and municipal laws in New York City, protect workers against pregnancy discrimination. New developments in federal disability law may also require employers to accommodate workers for certain conditions occurring during pregnancy or after giving birth. Where our laws fall short, however, is in the area of paid leave. The U.S. is one of only a handful of nations in the world with no paid parental leave laws. This can have a profound impact on employees and their families, as shown by a recent report published by In These Times.

A lack of access to paid parental leave requires people to plan extensively and to make difficult choices. Even the most careful plans can be easily derailed, however, and support is often not available afterwards. At the federal level, three main statutes affect the rights of pregnant workers:

– The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII of the Civil Rights Act of 1964 to include discrimination based on “pregnancy, childbirth, or related medical conditions” in the definition of sex discrimination. 42 U.S.C. § 2000e(k).
– The Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., requires employers to provide up to 12 weeks’ unpaid leave for medical conditions affecting the employee or a family member. The statute only applies to employers with 50 or more employees and to employees who have worked for the employer for at least 12 months. 29 U.S.C. §§ 2611(2), (4).
– The Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq., does not consider pregnancy itself to be a disability, but the ADA Amendments Act of 2008 (ADAAA) broadened the definition of “disability” to potentially include many conditions associated with pregnancy and childbirth. 29 C.F.R. § 1630.1(c)(4).

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