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The Pregnant Workers Fairness Act

By: Laureve Blackstone

New York City passed the Pregnant Workers Fairness Act, Local Law 78, in 2013, expanding rights previously granted by the New York City Human Right Law (NYCHRL).[1] Pregnancy discrimination is discrimination based on gender. On May 6, 2016, the New York City Human Rights Commission issued legal enforcement guidance on the Pregnant Workers Fairness Act. Here are some notable highlights of the guidance.

No need to prove temporary disability. Pregnant people are entitled to reasonable accommodation by virtue of being pregnant. Given the time-sensitive and relatively short duration of the need for reasonable accommodations, accommodations should be “liberally granted.”  Violations of the law include disparate treatment, failure to provide reasonable accommodation, failure to give notice of rights, disparate impact, and retaliation.

  • Disparate treatment includes treating individuals less well because of their pregnancy, policies that single out pregnant people, and actions rooted in stereotypes or assumptions about pregnancy.
  • Harassment may include comments about a pregnant person’s weight or appearance, their age in relation to their pregnancy, their commitment to their job, or their ability to focus on work. The guidance is full of great examples of violations including: 
  • Not allowing employees to accrue vacation and sick time while on leave to recover from childbirth despite allowing other employees to accrue vacation and sick time while on temporary disability leave;
  • Requiring medical clearance from pregnant employees to perform certain job duties when clearance is not required for other employees; or
  • Not assigning a pregnant employee to a new project because of a concern that worker will be “distracted.”
  • Required accommodations: Minor or temporary modifications to work schedules, requests for temporary shift reassignments, additional breaks or requests to sit during shifts, and temporary unpaid leave must be granted absent evidence of undue hardship or that they will prohibit employee from satisfying the essential requisites of the employee’s position. These types of minor accommodations “will rarely pose an undue hardship on an employer.” Employers must engage in a cooperative dialogue with employees once an employer learns, either directly or indirectly, that employee requires an accommodation due to pregnancy, childbirth, or related medical condition.
  • Reasonable accommodation must also be given for “related medical conditions” caused by pregnancy or childbirth, such as infertility, post-partum depression, miscarriage, and lactation, among others, plus recovery from childbirth, miscarriage, or termination of pregnancy.
  • Employers have a limited right to request medical documentation. Employers cannot require medical confirmation of pregnancy, childbirth, or related medical condition. Employers may only request documentation when the employee asks for leave other than the 6 – 8 week period following childbirth, and only if the employer requests verification from other employees requesting leave-related accommodations for reasons other than pregnancy, childbirth, or related medical condition. Leave requests must be granted absent an undue hardship. If the employer claims undue hardship, the employer must consider whether a different accommodation, such as shortened leave time, reduced or modified work schedule, or working from home, would alleviate the hardship.
  • Notice: Employers must provide a notice to all new employees detailing their rights to be free from discrimination.

[1] The NYCHRL is more protective than comparably worded state and federal statutes. It applies to employers with 4 or more employees. A worker may not have a claim under the Family Medical Leave Act, Title VII of the Civil Rights Act of 1964, or the Pregnancy Discrimination Act, but may have a claim under the NYCHRL. In fact, after courts had interpreted the NYCHRL consistent with federal and state statutes, the City Council amended the law in 2005 through the Restoration Act to clarify that the provisions should be liberally construed for the accomplishment of the uniquely broad and remedial purposes of the law. See R. Stulberg and L. Blackstone, Like a Nation Itself: An Analysis of Recent Decisions Affirming “The Uniquely Broad and Remedial Purposes” of the New York City Human Rights Law, 35 NYSBA Labor and Employment Law J. No. 1, Spring 2010. The City Council called the NYCHRL’s state and federal counterparts “a floor below which the City’s Human Rights Law cannot fall, rather than a ceiling above which the law cannot rise.”

To speak with one of our attorneys about a possible claim of pregnancy discrimination, or any other workplace issue, contact us at info@levyratner.com or by calling (212) 627-8100.

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