Pregnant New York Workers Have Greater Potential Accommodation Rights Than Under Federal Law

The recent NY Times article titled "Miscarrying at Work: The Physical Toll of Pregnancy Discrimination" is an important overview of the challenges faced by many pregnant American workers under current federal law.

“It was the worst thing I have ever experienced in my life,” Ms. Hayes said.

Three other women in the warehouse also had miscarriages in 2014, when it was owned by a contractor called New Breed Logistics. Later that year, a larger company, XPO Logistics, bought New Breed and the warehouse. The problems continued. Another woman miscarried there this summer. Then, in August, Ceeadria Walker did, too.

The women had all asked for light duty. Three said they brought in doctors’ notes recommending less taxing workloads and shorter shifts. They said supervisors disregarded the letters. . . . But refusing to accommodate pregnant women is often completely legal. Under federal law, companies don’t necessarily have to adjust pregnant women’s jobs, even when lighter work is available and their doctors send letters urging a reprieve. . . . It says that a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are “similar in their ability or inability to work.” (link)

Fortunately, pregnant women working in New York State and New York City (and several other states) have broader protections than under federal law.

“Outside Washington, there have been fewer roadblocks. At least 23 states have passed laws that are stronger than current federal protections.” (link)

For employers with at least four employees, New York and New York City law explicitly requires employers to reasonably accommodate pregnant workers. This right means that, unless the accommodation would imposes what the laws describes as “an undue hardship” on the employer, the employer is legally required to provide an accommodation to a pregnant worker (physically working in New York). Under some circumstances, pregnant workers working for employers in NYC are covered by this law even if the company classifies its workers as independent contractors.

You can find guidance on the New York State pregnancy discrimination law here and the New York City pregnancy discrimination law here.

Because the potential right to a pregnancy accommodation can be a complicated legal question involving a back-and-fourth “interactive process” with the employer, pregnant workers are well-advised to seek legal guidance as soon as possible after becoming pregnant.

Recently Pregnant Employees Also Protected From Pregnancy Discrimination For Four Months

Citing recent decisions from within the Second Circuit, New York federal Judge J. Paul Oetken found that protection from pregnancy discrimination extends to include recently pregnant women in addition to pregnant women:

Katherine Albin alleged viable pregnancy discrimination claims against Thomas Pink Inc., its corporate parent LVMH Moet Louis Vuitton Inc., and two supervisors under Title VII of the 1964 Civil Rights Act and New York state and city law, the U.S. District Court for the Southern District of New York said.  It found that the promotion denial may have occurred three and a half months after Albin gave birth to her first child.

Judge J. Paul Oetken cited emerging case law within the U.S. Court of Appeals for the Second Circuit holding that women who are four months or less removed from giving birth are still protected by Title VII's prohibition against pregnancy discrimination."

While observing that at some point after a pregnancy ends protection from pregnancy discrimination also comes to an end:

"[P]regnant women, women who very recently gave birth, and women on maternity leave are unquestionably within the protected class of pregnant persons, 'at some point in time such women are no longer 'affected by pregnancy, childbirth, or related medical conditions' and, thus, are not protected.'" (internal citations omitted) (link)

the court found that protection generally continues for approximately four months after a pregnancy:

"Distinguishing among previously pregnant women to determine who is still affected by pregnancy requires selecting a temporal cutoff based on the facts of the given case.  While ultimately dependent on the factual situation of a specific claim, a pattern has developed in this Circuit establishing a loose line at approximately four months from the date of birth." (internal citations omitted) (link)

In my view, along with age and disability discrimination, pregnancy discrimination is one of the more prevalent forms of discrimination today.  Unlike explicit race and gender discrimination, pregnancy discrimination (in its varied forms) does not carry the same heavy stigma and is surprisingly prevalent. 

Unfortunately, although prevalent, it is often unrecognized and/or unreported.

This decision goes a long way to help advance anti-discrimination protections for pregnant and recently pregnant employees.

NYC Deadline to Provide Notice of Pregnancy Rights Expires Tomorrow

In 2013 NYC passed an amendment to the New York City Human Rights law broadening protections for pregnant workers.  The amendment requires employers to provide pregnant employees with reasonable accommodations at work.

Before passage of the amendment, pregnant employees were often not entitled to any accommodations because they did not meet the definition of "disabled" under disability discrimination laws. 

As explained in the preamble to the amendment:

"The Council finds that pregnant women are vulnerable to discrimination in the workplace in New York City.  For example, there are reports that women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.  It is the intent of the Council to combat this form of discrimination by requiring employers to provide reasonable accommodations to pregnant women and those who suffer medical conditions related to pregnancy and childbirth.  Such a reasonable accommodation may include bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor, among other things . . . ." (link)

The new law, which applies to employers with four or more employees, became effective January 30, 2014.  In addition, as of that date, NYC employers (with four or more employees) were required to provide a notice of these new protections to all new hires. 

The deadline to provide the notice to current employees expires tomorrow. 

Employees - if you have not received this notice your employer may be in violation of the New York City Human Rights Law.

Employers - if you have not sent this notice out yet - you might want to get started on that . . . right now.

The notice is below and an overview of the amendment is available here.