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.
The defendant does not notify its employees of their rights under the PWFA, the plaintiffs claim, as that statute requires. Plaintiffs further allege that the defendant “consistently” informs employees “that absences for pregnancy-related conditions cannot be authorized.” Id. at 6. According to one plaintiff, she began to experience severe nausea and vomiting several weeks after she learned that she was pregnant, and became dehydrated. A manager allegedly told her that she could not authorize an absence from work to go to the hospital. The plaintiff states that she went to the hospital anyway. She was eventually diagnosed with hyperemesis gravidarum, a rare but particularly severe pregnancy complication. This absence, however, allegedly resulted in her termination “for accumulating ‘too many’ points.” Id. at 9. The other named plaintiff makes similar allegations involving a recommendation from her doctors to go to the hospital, which the defendant allegedly ignored.
The lawsuit, a putative class action, asserts a single cause of action for violations of the PWFA. The complaint alleges that the defendant “failed to even consider whether plaintiffs could be accommodated,” id. at 14, and that this is a problem for employees across the country. The plaintiffs are seeking compensatory damages and injunctive relief.
At Phillips & Associates, our team of employment attorneys advocate for the rights of New York City employees, former employees, and job seekers in claims for unlawful employment practices like pregnancy discrimination. Please contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with a member of our team.
More Blog Posts:
Federal Lawsuit Alleges Disparate Impact Discrimination Based on Pregnancy, New York Employment Attorney Blog, November 7, 2018
New York City to Require Dialogue Between Employers and Employees Regarding Accommodations for Pregnancy and Other Conditions, New York Employment Attorney Blog, February 28, 2018
Plaintiffs in Successful Pregnancy Discrimination Lawsuit Seek to Change State Law, New York Employment Attorney Blog, February 21, 2018