Pregnancy discrimination occurs when an adverse employment action is taken against an employee because the employee is pregnant, plans to become pregnant, was recently pregnant, or recently gave birth. Adverse employment actions vary, and can include: firing a female employee because she is pregnant, refusing to hire a qualified female applicant because she is pregnant, or failing to restore an employee returning from pregnancy leave to a former position.
Employers are prohibited from discriminating on the basis of pregnancy-related conditions under both federal and New York state law. Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of a protected trait. Pregnancy discrimination may be considered sex or disability discrimination. The Pregnancy Discrimination Act (PDA) was amended to Title VII to require equal employment treatment among pregnant and disabled employees. Under the PDA, pregnant women are considered temporarily disabled, and therefore, must be afforded the same accommodations as temporarily disabled employees. The PDA does not draw a distinction between married employees and non-married employees. Thus, a female employee must be offered the same pregnancy-related benefits, regardless of her marital status.
The Family Medical Leave Act (FMLA) is another federal law protecting employees from pregnancy-related discrimination. The FMLA allows expecting mothers and fathers to take a 12-week, unpaid, job-protected leave following the birth of a child. This 12-week leave is optional though, and an employer cannot compel an employee to take the leave. Likewise, an employer cannot set a start or end date for when a pregnant employee must begin or end maternity leave. If a pregnant employee is able to perform her job duties, an employer must allow the employee to continue working. These federal laws however, only apply to employers with at least 15 employees. While an employer with less than 15 employees is not liable under federal law, he or she may still be liable under state law.
New York prohibits employers with four or more employees from discriminating based on a pregnancy-related condition. The New York City and State Human Rights Law protects the medical needs of women who are pregnant, or recently pregnant. The New York State Human Rights Law requires employers to make reasonable accommodations for pregnancy-related medical conditions. The New York City Human Right Law extends this protection even further by making it an unlawful discriminatory practice to fail to make this type of accommodation. Additionally, the Human Rights Law requires equal treatment among employees with a pregnancy-related medical condition and employees with a different medical condition. The New York City Pregnant Workers Fairness Act (PWFA) also prohibits employers in New York City from forcing an employee to quit, or firing the employee, because of a current or past pregnancy.
Pregnancy is considered a temporary disability and as a result, compels employers to take reasonable steps to accommodate these employees. Any failure to accommodate a pregnancy-related condition may lead to a sex or disability discrimination claim against the employer. A reasonable accommodation is some variation of the employer’s policy that allows a pregnant employee to take certain actions without work interference. For a pregnant employee, this may include additional bathroom breaks or minimal time standing up. While employers must grant reasonable accommodations, there is no requirement to do so if the accommodation would place an undue burden or hardship on the company. The employer is responsible for proving the requested accommodation would place an undue hardship on the company. Further, an employer must be aware, or have reason to be aware of the need for the employee’s accommodation.
If an employer provides health insurance, the health insurance must cover pregnancy expenses, as well as pregnancy-related medical condition expenses. Employers are prohibited from imposing a high deductible for pregnancy-related expenses. These expenses must be reimbursed the same way as other medical conditions are. Additionally, employers must provide fringe benefits to employees on pregnancy or maternity leave if the employer provides these benefits to other employees.
In 2015, the Human Rights legislation was amended to include, and expand, the definition of a pregnancy-related condition. Prior to this amendment, a pregnancy-related condition was considered a temporary disability accruing the same protections. After the amendment was officially enacted, this parallel changed. Pregnancy-related conditions now no longer must meet any definition of a disability in order to trigger an employer’s duty to make necessary, reasonable accommodations. A pregnant employee requesting a reasonable accommodation may be asked by an employer to verify the pregnancy-related medical condition before the request is granted.
Under New York state law, breastfeeding is considered a reasonable accommodation an employer must make if necessary. Accommodations for breastfeeding may include an extended break or lunch period and a specific, private location for the employee. Employers cannot discriminate against employees who choose to express breast milk in the workplace. If an employee elects to do so in the workplace, the employer may not prohibit such action for up to three years following the birth of the employee’s child.