Pregnant women may be passed over for promotions, have their hours cut, or even terminated because they are, or might become, pregnant. The effects of pregnancy discrimination can be felt not only through lost income or benefits, but an employer’s failure to provide reasonable workplace accommodations can also pose serious health risks to an expecting mother. New and expecting mothers have many things to worry about, but job security and pregnancy discrimination should not be one of them.
A patchwork of federal, state, and local laws protect women from discrimination during and after pregnancy and provide opportunities for leave (paid and unpaid) as well. Under these laws, employers cannot reduce your hours or benefits, demote or terminate you, or fail to hire you because you are pregnant. Despite these laws, pregnancy discrimination is widespread in New York and impacts women in all industries.
If you have experienced pregnancy discrimination, call Ottinger Employment Lawyers for a free consultation. We handle these cases on a contingency fee basis so there is no fee unless we win. Click here for information about our New York office.
What is Pregnancy Discrimination?
Pregnancy discrimination occurs when an employer treats an employee (or job applicant) less favorably because she is pregnant or plans to be pregnant in the future. Essentially, your employer makes job-related decisions based on your pregnancy and not your qualifications.
Pregnancy Discrimination Laws
Laws exist at the federal, state, and local levels prohibiting employers from engaging in pregnancy discrimination.
Federal Pregnancy Discrimination Act
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy, childbirth, and related medical conditions as it constitutes unlawful sex discrimination. The PDA applies to employers with at least 15 employees.
Under the PDA, your employer cannot:
- fire or demote you, deny you a promotion, or cut your hours after finding out you are pregnant;
- force you to stop working because you are pregnant—you have the right to work as long as you can do your job;
- inquire about your plans to become pregnant or whether you are pregnant during a job interview; or
- treat you differently than other employees simply because you are pregnant.
Under the PDA, a pregnancy-related condition like bed rest, severe morning sickness, or childbirth is considered a temporary disability. Therefore, an employer must treat pregnant employees the same as non-pregnant, temporarily disabled employees. Employers may be required to provide duty modifications, alternative assignments, or a leave of absence.
However, if another non-pregnant, temporarily disabled employee is not entitled to leave or benefits, then a pregnant woman is similarly not entitled to leave or benefits (absent protections under other laws discussed below). Also, employment decisions based on employee conduct caused by pregnancy are not prohibited. For example, if you are late because of morning sickness, your employer does not have to treat you differently than an employee who was late for other health reasons.
New York State Human Rights Law
The New York State Human Rights Law (NYSHRL or “state Human Rights Law”) offers similar protections as the PDA but applies to more employers. Under the state Human Rights Law, employers with at least four employees are prohibited from discriminating on the basis of sex, which is interpreted to include discrimination based on pregnancy, childbirth, and related conditions. The state Human Rights Law treats “pregnancy-related conditions” as temporary disabilities. Therefore, covered employers must provide reasonable accommodations to pregnant employees with a pregnancy-related condition.
A reasonable accommodation is an action that enables the employee to perform her job functions and can include rest breaks, modified job duties, or transfers to a less dangerous job. An employer can only avoid providing a reasonable accommodation if it demonstrates it would be an undue hardship for the business (e.g., too expensive or difficult to implement). You may need to provide medical documentation verifying your pregnancy-related condition or need for an accommodation.
Under the NYSHRL, an employer also cannot compel a pregnant employee to take a leave of absence as long as the employee can do her job.
New York City Human Rights Law—Pregnant Workers Fairness Act
New York City offers even greater protections thanks to the New York City Human Rights Law (NYCHRL or “city Human Rights Law”), as amended by the Pregnant Workers Fairness Act. Unlike the PDA and state Human Rights Law, the city Human Rights Law does not require a pregnancy-related limitation to qualify as a disability for an employer to provide reasonable accommodations. Instead, the City law requires employers to provide accommodations simply because you are pregnant.
Under the NYCHRL, employers must provide reasonable accommodations when the need is based on pregnancy, childbirth, or a related medical condition. This law also applies to women undergoing fertility treatments, or after a miscarriage or abortion. Your employer cannot request a physician’s note for a minor accommodation.
Examples of Pregnancy Discrimination
Pregnancy discrimination comes in many forms.
- Hiring. An employer cannot make hiring decisions based on pregnancy status or refuse to hire an employee because she is pregnant or planning to become pregnant. During an interview, a potential employer cannot ask whether you have children or plan to get pregnant.
- Firing. An employer cannot fire an employee for being pregnant or planning to become pregnant.
- Overtime/Hours. An employer cannot refuse you overtime or reduce hours because an employee is pregnant.
- Promotions. Pregnant employees cannot be denied promotions or demoted for being pregnant.
- Benefits. Pregnant employees must be provided the same leave and health insurance as other non-pregnant employees.
- Wages. An employer cannot reduce wages or salary because of pregnancy.
- Workload. An employer cannot change a pregnant employee’s schedule or assignments, solely based on the employee’s pregnancy.
- Training. Pregnant employees should have access to the same training and educational opportunities as non-pregnant employees.
- Documentation. Employers cannot require proof of pregnancy and cannot require a doctor’s note unless you have requested accommodations that force you to leave the workplace.
How to Tell Your Boss That You’re Pregnant
If you can complete your job duties and do not request any modifications, your employer must allow you to continue performing your job while pregnant. However, if you ask for accommodations, your employer has different requirements depending on the laws that apply to your situation. To summarize:
- The PDA requires employers with 15 or more employees to provide the same accommodations to pregnant employees that it provides to employees temporarily disabled by other health conditions.
- The NYSHRL requires employers with four or more employers to provide reasonable accommodations to pregnant employees with pregnancy-related conditions that it gives to employees temporarily disabled by other health conditions.
- The city Human Rights Law requires employers with four or more employees to provide reasonable accommodations to all pregnant employees unless it would cause an undue hardship on the company.
- If New York laws do not cover you, the Americans with Disabilities Act (ADA) may help. The ADA prohibits disability discrimination by employers with 15 or more employees. Since some pregnancy-related conditions may be considered disabilities under the ADA, you may be entitled to accommodations. Normal physical changes and limitations caused by pregnancy do not qualify as disabilities, but conditions such as gestational diabetes or preeclampsia may be.
Reasonable accommodations may include:
- water breaks or permitting a worker to keep water at her desk (when a company typically does not allow this);
- more frequent restroom breaks;
- providing breaks or increasing the frequency of breaks;
- reduced standing time or providing a chair to sit on;
- time off for doctors’ visits or prenatal appointments;
- assistance with manual labor (e.g., heavy lifting);
- temporary transfer to a less strenuous or hazardous working condition;
- changes in work locations or duties to prevent exposure to dangerous substances;
- redistribution of non-essential tasks (e.g., heavy lifting);
- allowing an employee to alter her schedule due to hyperemesis gravidarum (severe morning sickness);
- permitting an employee to telecommute while on bed rest;
- amending a standard leave policy for pregnant employee transfers or changes in jobs to reduce stress; or
- time off or leave to recover after childbirth.
Leave laws are intended to provide new parents the opportunity to spend time caring and bonding with a new child without fear of losing their jobs. Each law provides for different lengths of leave and has different eligibility requirements.
Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) is a federal law that entitles an employee to take up to 12 weeks of unpaid leave in connection with childbirth and pregnancy (including adoptive and foster parents, and fathers). This law applies to employers with at least 50 employees working within a 75-mile radius of each other.
To qualify for FMLA leave, an employee must have worked for the employer for at least 1250 hours in the last 12 months. The leave may be taken anytime during the first year after the birth of the child, and the employer must give the employee their job back (or an equivalent position) upon return to work.
FMLA leave is unpaid. However, you may be entitled to disability benefits or pay based on other laws. Consult with an experienced employment lawyer [insert link] to review your circumstances and identify the leave and payments available to you.
New York State Paid Family Leave & Short-Term Disability Benefits
New York Paid Family Leave
New York has one of the nation’s most robust paid family leave policies. As of January 1, 2018, most employees working in New York State for private employers are eligible for paid family leave to bond with a newborn or adoptive child. The program is funded through payroll contributions unless the employer self-funds. To be eligible, an employee must be a full-time employee (working 20 or more hours per week, eligible after working 26 consecutive weeks) or part-time employee (working less than 20 hours per week, eligible after working 175 days); independent contractors, freelancers, and farm workers do not qualify. You are guaranteed your same or comparable job after leave ends, so the leave is job-protected. You can also continue your health insurance while on paid family leave, but you must continue to pay your portion of your insurance premiums.
The amount of paid family leave will change over a four-year, phase-in period. Starting in 2018, you receive 50% of your average weekly wage for an eight-week period (capped at 50% of State average weekly wage). By 2021, you receive 67% of your average weekly wage for 12 weeks (capped at 67% of State average weekly wage).
Leave laws can be confusing and have different notice requirements to take advantage of them. It is advisable to consult with your human resources department as well as an employment lawyer with any questions about pregnancy-related leave and benefits.
New York Short-Term Disability Benefits
New York provides short-term disability insurance to pregnant and postpartum women. Under this program, women are given time off and paid partial wages for issues relating to the mother’s health conditions such as pregnancy complications or recovery from childbirth. Recipients receive 50% of pay, up to a maximum of $170 per week. The duration of benefits is determined by a doctor’s assessment of how long you are unable to work.
Rights After Childbirth – Nursing Mothers
Women have a legal right to express/pump breast milk in the workplace. Employers are required to provide nursing mothers with the following:
- reasonable break time (once every three hours for at least 20 minutes) to express milk for up to three years after the birth of a child;
- use of paid breaks or meal times, or reasonable unpaid break times pump;
- a place to express milk that is clean, safe, private, and close to the workspace. This place cannot be a restroom or toilet stall.
- refrigerated space to store expressed milk; and
- no discriminatory behavior for choosing to express breast milk in the workplace.
These requirements apply to all employers in New York State, public and private. If you intend to pump, you are required to notify your employer in advance—the best time is before returning to work. Your employer does not have to pay you for the breaks, but they are required to let you work before or after your shift to make up the time (within regular company hours).
Have You Experienced New York Pregnancy Discrimination?
If you believe your employer has discriminated against you in violation of the laws discussed in this Guide or retaliated against you for asserting your rights, you have options. Due to the complicated nature of these laws, you should consult with an employment lawyer [insert link] experienced at handling pregnancy discrimination to review your circumstances and develop the best course of action.
Depending on the nature of your relationship with your employer, you first might consider addressing the discrimination directly with your employer. If this is not an option, or the employer refuses to remedy the misconduct, you can file a formal complaint with the Equal Employment Opportunity Commission (EEOC) or New York Division of Human Rights (or other applicable state or local agency), or file a lawsuit in state or federal court.
The nature of your claims will dictate where you need to file and what. For instance, federal claims will be handled by federal venues like the EEOC or federal court, whereas state claims are controlled by the New York Division of Human Rights or New York State courts. Some complaints must first be filed with the appropriate agency before you can file a lawsuit. For example, claims for violating federal disability discrimination laws must be filed with the EEOC first, but if your employer violated the FMLA, you could go straight to court without any agency filing.
Money damages. This is one of the more common remedies and includes:
- backpay (lost salary and benefits);
- front pay (anticipated future losses)
- pain and suffering (emotional distress); and
- court and attorneys’ fees.
Injunctive Relief. A court may require an employer to stop specific behaviors or practices, or the court could order your reinstatement. Reinstatement, or getting your job back, is uncommon because of the possible tension between you and your former employer. Besides, courts try to avoid displacing the person who was hired to replace you.
Punitive Damages. Punitive damages are granted to punish the employer and deter the company from repeating the unlawful acts. These damages are only awarded in exceptional cases where an employer acted intentionally or egregiously. The state Human Rights Law prohibits punitive damages awards.
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