The New York City Commission on Human Rights issued guidance on violations of the pregnancy protections under the New York City Human Rights Law, and makes clear how employers should accommodate employees based on pregnancy, childbirth or a related medical condition.
The Legal Enforcement Guidance on Pregnancy Discrimination, released on May 6, 2016, states that pregnancy discrimination includes firing or refusing to hire or promote employees because they are pregnant, refusing to accept a housing application based on an applicant’s pregnancy or denying entry to a public accommodation, such as bars or clubs, based on pregnancy. It also details the kinds of accommodations that employers must grant employees related to pregnancy, childbirth, or a related medical condition, including minor changes in work schedules, allowing for drinking, snacking, and bathroom breaks; allowing employees to eat at their desks; providing seating; arranging for light duty or desk duty assignment; transferring workers to other available positions that are less strenuous or hazardous; and allowing for unpaid leave to recover from childbirth.
Such accommodations must be granted absent evidence of an undue hardship for the employer or if the accommodation will prohibit an employee from satisfying the essential requisites of the position. Accommodations must also be granted to employees undergoing fertility treatment, who have had abortions or miscarriages, or who are breastfeeding.
The Guidance clarifies an employer’s obligations under the New York City Human Rights Law. Employers must provide all employees a written notice of their right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions, or post a notice in an accessible place. Employers must also initiate and engage in a “cooperative dialogue” with employees once the employer is on notice, directly or indirectly, that an employee is in need of an accommodation based on pregnancy, childbirth or a related medical condition, noting that failure to do so may result in a violation of the law. Even in cases where the employee has not requested a reasonable accommodation, the employer must initiate a cooperative dialogue if the employer has knowledge that an employee’s performance at work has been affected or that their behavior at work could lead to an adverse employment action; and has a reasonable basis to believe that the issue is related to pregnancy, childbirth, or related medical condition. An employer may not retaliate against employees for requesting reasonable accommodations for pregnancy, childbirth or a related medical condition.
The New York City law is a progressive step towards eliminating judgments and stereotypes about how pregnant women should behave and it goes significantly further than the federal law that only requires that employers accommodate pregnant workers the same as any other temporarily disabled worker.