New York Employment Attorney Blog
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.
These laws address the needs of workers during pregnancy, and for whatever period of time after childbirth the new parent is breastfeeding. As any parent knows, however, parental responsibilities extend far beyond that, and can still be a liability at work. New York City amended the NYCHRL a few years ago to include protections against caregiver discrimination. The statute defines a caregiver as one “who provides direct and ongoing care” to specified individuals, including one or more children under the age of eighteen. Id. The prohibition on caregiver discrimination therefore applies to most parents in New York City.
No system of legal protection is perfect. The CHR held a public hearing on January 30, 2019 at CUNY School of Law to try to identify gaps in the NYCHRL’s coverage. Testimony at the hearing addressed disparate treatment of new mothers and fathers in the workplace, as well as subtle ways that employers still penalize new parents who take leave from work. A parent may, for example, try to return to work to find that their position has been eliminated. People also discussed the difficulty of proving that an employer took an adverse action “because of” someone’s pregnancy. The lack of any system of paid parental leave at the federal level was a topic of significant concern.
At Phillips & Associates, our team of experienced and knowledgeable employment lawyers helps New York City employees and job applicants assert their rights in claims for unlawful workplace practices like pregnancy and caregiver discrimination. Please contact us at (212) 248-7431 or online today to schedule a free and confidential consultation to see how we can help you.