October 22, 2018

October 22, 2018

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New York City Extends Human Rights Law to Pregnant Women with 'Pregnant Workers Fairness Act'

The New York City Council, citing concerns “that pregnant women are vulnerable to discrimination in the workplace,” recently passed a bill amending the City’s Human Rights Law (HRL) to expressly provide for “reasonable accommodation” protections to pregnant employees in New York City. The bill, signed by Mayor Michael R. Bloomberg on October 2, 2013, requires that employers offer reasonable accommodations “to the needs of an employee for her pregnancy, childbirth, or related medical condition that will allow the employee to perform the essential requisites of the job.” The law is scheduled to go into effect on January 29, 2014. Employers operating in New York City should familiarize themselves with how the amendment will create new obligations and supplement employees’ existing rights.

Titled “The Pregnant Workers Fairness Act” (PWFA), the law requires employers in New York City to provide their pregnant employees with “reasonable accommodations” for their pregnancies or related medical conditions. The PWFA explains that such accommodations “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.” 

The PWFA does not alter an employer’s right to demonstrate, among other things, that a proposed accommodation would cause “undue hardship.” Nor does it preclude employers from establishing, as an affirmative defense, that the employee “could not, with reasonable accommodation, satisfy the essential requisites of the job.” 

Employers are required to provide employees notice of their rights under the PWFA, “in a form and manner to be determined by the” Commission on Human Rights. The law requires that notice shall be given to new employees at the start of their employment and to existing employees within 120 days after the law’s effective date. Notice “may also be conspicuously posted” at the employer’s place of business. 

The PWFA expands pregnant employees’ rights in ways not encompassed under existing federal or state legislation. While the federal Pregnancy Discrimination Act (PDA) prohibits pregnancy discrimination, employers are generally not required to provide reasonable accommodation of an employee’s pregnancy or related conditions. Similarly, the Americans with Disabilities Act (ADA) and New York State Human Rights Law generally do not extend to pregnancy, since a normal pregnancy is not considered a “disability” under those laws.

Key Take Aways

Although the PWFA does not offer an exhaustive list of pregnancy-related conditions eligible for accommodation, the courts will likely view such conditions quite broadly. The HRL states that its provisions “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed.”  Employers should be mindful that any physical condition directly related to pregnancy could potentially trigger an obligation to provide a reasonable accommodation. Under PDA and Title VII case law, for example, such conditions have ranged from lactation and interruption of normal menstrual cycles to elective abortions. 

Employers should also bear in mind that, unlike certain other anti-discrimination statutes such as Title VII, the HRL does not require an exhaustion of administrative remedies prior to bringing suit. As such, plaintiffs can bring their claims in court in the first instance.

Moreover, there is no form of reasonable accommodation that is categorically excluded under the HRL.  Employers should be aware that, if sued under the PWFA, they will have the burden of demonstrating that proposed accommodations would cause “undue hardship,” taking into account fiscal costs, the nature of the particular employment and workforce, the size of the business, and the physical characteristics of the workplace. Alternatively, the employer should be ready to produce evidence that the pregnant employee could not, with reasonable accommodation, satisfy the essential requisites of the job. 

Employers in the City of New York should prepare by considering pregnancy-related conditions that may be covered under the new law, reviewing their current policies in light of these legal developments, and training supervisors to be mindful of the new law and its effects.

Jackson Lewis P.C. © 2018

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About this Author

Robert Bernstein, GreenbergTraurig Law Firm, Labor and Employment Litigation Attorney
Shareholder

Rob Bernstein focuses his practice on labor and employment exclusively for management, with an emphasis in litigation and counseling. With over 30 years of experience, Rob has represented many multinational and domestic corporations in a wide range of industries. His practice extends to numerous jurisdictions across the United States, involving most workplace issues, including class and collective actions, employee benefits and trade secret litigation.

Prior to joining the firm, Rob chaired the National Labor and Employment Department Steering...

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Jerrold Goldberg, Greenberg Traurig Law Firm, Labor and Employment, Real Estate and Education Attorney
Shareholder

Jerrold F. Goldberg practices in the firm’s Labor & Employment Practice’s Labor-Management Relations group. He has been practicing in virtually all aspects of labor and employment law since 1979, including the traditional labor/union-management area, employment discrimination, executive employment, severance agreements and wage and hour laws. Jerry exclusively represents management clients primarily in the real estate and hospitality industries in transactional matters, including commercial and residential building and hotel sales and purchases, administrative compliance, such as 421-a prevailing wage issues, and lease, property management and concessionaire relationships, as well as all aspects of labor and employment litigation. This includes traditional labor litigation, such as union management arbitration, N.L.R.B. representation and unfair labor practice proceedings, and strike and picketing injunctive actions, wage and hour litigation involving misclassification, overtime and service charge/gratuity issues, and employment discrimination and restrictive covenant litigation in federal and state courts and administrative agencies.

Concentrations

  • Real estate transactional issues

  • Collective bargaining negotiations and arbitration

  • EEO litigation

  • Drafting of employment agreements/severance and release agreements/non-compete and non-solicit agreements

  • Wage and hour litigation

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Michael Slocum, Greenberg Traurig Law Firm, New Jersey, Labor and Employment, Litigation Attorney
Of Counsel

Michael J. Slocum focuses his practice on labor and employment law, including the defense of discrimination, retaliation, wrongful discharge and whistleblower claims. Michael has represented employers in a broad array of industries, including health care and life sciences, pharmaceutical, private security, and retail, and has experience defending against both individual employee claims and class actions.

Prior to joining the firm, Michael practiced in the litigation department of a national firm focused on labor and employment matters in the...

973-360-7900