Although discrimination against pregnant women in the workplace violates federal and New York state law, it still happens in businesses and industries across the state.
Allegations of pregnancy discrimination at Walmart, Merck, Novartis, and Glencore have spurred an investigation by the New York State Division of Human Rights. Nationally, nearly 31,000 charges of pregnancy discrimination were filed with the U.S. Equal Employment Opportunity Commission between October 2010 and September 2015.
In response to the large number of recent pregnancy discrimination claims in New York State, the Division of Human Rights created an educational campaign to raise awareness about pregnancy discrimination, which includes ads on New York City subways and a website where it can be reported. The site also provides guidance to employers on pregnancy discrimination and reasonable accommodation of pregnancy-related conditions.
New York is one of 23 states, along with Washington, D.C., with laws explicitly requiring employers to provide reasonable accommodations for pregnant workers. The details of the laws vary from state to state, but they share a common principle: a pregnant worker with a medical need for accommodation should be reasonably accommodated, as long as it does not impose an undue hardship on the employer. Furthermore, the Americans with Disabilities Act (ADA) provides its own level of protection for pregnant workers.
The New York State Human Rights Law that protects pregnant women applies to all employers with at least four (4) employees. Pregnancy discrimination is “taking any adverse action against an employee because the employee is pregnant, intends to become pregnant, recently was pregnant, or recently gave birth,” according to the Division of Human Rights. “Such adverse actions would include termination, demotion, unwanted transfer, denial of overtime, unwanted reduction of work schedule, or any other adverse action relating to the terms, conditions or privileges of employment.”
The law was amended in 2015 to make it explicit that “employers are required to provide reasonable accommodation of pregnancy-related conditions,” including:
- occasional breaks to rest or drink water,
- a modified work schedule,
- leave for related medical needs,
- available light duty assignments, and
- transfers away from hazardous duty.
Employers must make the same reasonable accommodations as they would for any other disabled employee if a pregnant worker is not able to perform certain duties of her job during or after pregnancy.
The New York law offers similar protections as the federal Pregnancy Discrimination Act, which is an amendment to the Civil Rights Act of 1964, although the federal statute applies to employers with fifteen (15) or more employees.
Additional protections under the federal Family and Medical Leave Act require employers with fifty (50) or more employees to provide up to twelve (12) weeks of unpaid leave. The employee’s job must be held open while she is on leave and she is entitled to the same or similar job and benefits upon return.
Starting January 1, 2018, New York State’s Paid Family Leave provides New Yorkers with job-protected, paid leave to bond with a new child, care for a loved one with a serious health condition or to help relieve family pressures when someone is called to active military service abroad.
In addition to protections for pregnant workers, it is also unlawful for employers to discriminate against women for breast feeding in New York State. For up to three (3) years following childbirth, women may take reasonable unpaid break time, paid break time or meal time every day to express breast milk at work. Employers must make reasonable efforts to provide a room or another location, in close proximity to the employee’s work area, to express breast milk in private and she may not be discriminated against for her decision to express breast milk at work.
The myriad laws and regulations surrounding pregnancy discrimination are complicated. If you are an employer trying to implement a compliant human resources policy, or an employee attempting to determine the extent of your rights, you should consult with an experienced labor and employment attorney.
Nicholas A. Devyatkin, Esq. is a New York City-based labor and employment attorney at Tully Rinckey PLLC.
