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.”
The new law, Local Law 2019/020, adds “sexual and reproductive health decisions” to the list of protected categories in employment and other areas. It defines the term very broadly as “any decision by an individual to receive services…relating to sexual and reproductive health, including the reproductive system and its functions.” It provides a non-exhaustive list of services, including fertility treatments, family planning services, contraception, abortion, and STD testing and treatment. It also amends the provisions of the NYCHRL that allow civil suits “to enjoin discriminatory harassment or violence” and prohibit “discriminatory harassment,” adding protection for “sexual and reproductive health decisions.” See N.Y.C. Admin. Code § 8-602 et seq.
The New York State Assembly passed a bill in January 2019, A584, that would amend the New York Labor Law to prohibit employers from making adverse employment decisions based on employees’ “reproductive health decision making.” It would also prohibit employers from requiring workers to sign any documents purporting to waive “the right to make their own reproductive health care decisions.” Employees would have the right to file a civil suit for damages and injunctive relief. A companion bill, S660, is still awaiting action in the State Senate as of April 2019.
This issue has gained prominence in recent years, largely as the result of employers claiming exemptions from health insurance coverage mandates based on the religious beliefs of the company’s owners. In the most famous case, Burwell v. Hobby Lobby, 573 U.S. ___ (2014), an employer argued that the mandate for contraceptive coverage in the Affordable Care Act (ACA) violated the company’s religious freedom. The court agreed in a 5-4 ruling whose impact on other employers remains uncertain.
Phillips & Associates’ employment attorneys help New York City workers assert their rights in claims for discrimination and other unlawful workplace practices. To schedule a free and confidential consultation with a member of our team, please contact us today online or at (212) 248-7431.