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NYC Litigation Blog

Thursday, June 16, 2016

Pregnancy Discrimination

What constitutes pregnancy discrimination?

As of May 6, 2016 the definition of pregnancy discrimination was clarified by the New York City Commission on Human Rights under the New York City Human Rights Law (NYCHRL) which gives clear examples of the particular accommodations employers have to make for women relative to pregnancy-and-childbirth-related medical conditions.

Previous Laws Prohibiting Gender Discrimination

Before the new law, the Pregnant Workers Fairness Act (New York City Administrative Code § 8-107(22)(a) already required employers to provide accommodations to pregnant workers to allow them to continue performing their regular duties at work. New York's State Legislature bill, "Protect Women from Pregnancy Discrimination," provided for the expansion of these protections statewide.

Defining Discrimination

The recent guidance offered by the New York City law makes it unlawful to treat an employee or job applicant "less well than others" because of her actual or perceived pregnancy. The following actions are specifically prohibited:

 

  • Refusing to hire someone qualified because she appears to be, or states that she is, pregnant
  • Firing an employee because of her pregnancy
  • Harassing a pregnant employee by commenting on her weight, appearance, age, job commitment or ability to concentrate
  • Excluding pregnant workers from particular job categories
  • Requiring pregnant employees to take unpaid leave at a certain time during their pregnancies
  • Requiring pregnant workers to obtain medical clearance to perform certain tasks if such medical clearance is not required of other employees

     

    Prohibitions of pregnancy discrimination apply in situations in which a woman is expected to become pregnant in the near future as well as in situations in which she is already with child.

    Some types of pregnancy discrimination are more subtle and therefore may be more difficult to prove. These include employers' actions in regard to the pregnant woman based on mistaken ideas or inappropriate stereotypes and may include:

  • Assumptions about physical limitations
  • Judgments about what is or is not healthy for the fetus
  • Assumptions that the woman will not return to the workplace after giving birth
  • Assumptions that the woman will not be able to give her full attention to the work at hand

     

    What are reasonable accommodations for pregnancy-and-childbirth-related conditions?

    The employer is now required to provide accommodations that will make it possible for the pregnant woman to continue working, even if, for some period of time, the pregnancy amounts to a disability.

    Reasonable accommodations that employers are required to make under the new law include:

    • Modifying work schedules
    • Reassigning shifts
    • Allowing sitting during work
    • Readjusting dress or uniform codes
    • Providing additional bathroom breaks
    • Providing additional breaks for water, snacks, or rest  
    • Permitting employees to eat at their work stations
    • Physically altering work station structures
    • Honoring leave requests to recover from childbirth
    • Allowing employees reasonable time and a suitable location to pump breast milk

Unless it can be proven that one of these accommodations will create undue hardship for the employer, the employer has an obligation to provide such accommodations not only to pregnant or lactating mothers, but to employees who are undergoing fertility treatments or who have experienced miscarriages or pregnancy terminations.

If you have been harassed or discriminated against at work because of a pregnancy or childbirth issue, there are laws to protect you, but you shouldn't try to navigate the legal waters alone. Your smartest bet is to engage an excellent New York attorney who specializes in business law and who has extensive experience with employment discrimination.


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