NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy: Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22)
The New York City Human Rights Law (“NYCHRL”) prohibits discrimination in employment, public accommodations, and housing. It also prohibits discriminatory harassment and bias-based pro ling by law enforcement. The NYCHRL, pursuant to the 2005 Civil Rights Restoration Act, must be construed “independently from similar or identical provisions of New York state or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a oor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”1 In addition, exemptions to the NYCHRL must be construed “narrowly in order to maximize deterrence of discriminatory conduct.”2
The New York City Commission on Human Rights (the “Commission”) is the City agency charged with enforcing the NYCHRL. Individuals interested in vindicating their rights under the NYCHRL can choose to le a complaint with the Commission’s Law Enforcement Bureau within one (1) year of the discriminatory act or le a complaint in court within three (3) years of the discriminatory act.
The NYCHRL prohibits unlawful discrimination in employment, public accommodations, and housing, on the basis of pregnancy or perceived pregnancy, through its prohibitions on discrimination based on gender. It also requires employers to reasonably accommodate 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, provided that such employee’s pregnancy, childbirth, or related medical condition is known or should have been known by the employer.”3 This document serves as the Commission’s legal enforcement guidance on the NYCHRL’s protections as they apply to discrimination and reasonable accommodations based on pregnancy, childbirth, or related medical condition. This document is not intended to serve as an exhaustive list of all forms of pregnancy-related discrimination claims under the NYCHRL.
I. LEGISLATIVE INTENT
Pregnancy discrimination under the NYCHRL is discrimination based on gender.4 Prior to 2014, however, people who needed accommodations in the workplace relating to pregnancy or for medical conditions related to pregnancy or childbirth had to show that their conditions amounted to a temporary disability. As a result, people with routine pregnancies were regularly denied even the most minor accommodations and forced to work under conditions that compromised their pregnancies. Realizing that the law, as it was often interpreted, excluded individuals with routine pregnancies from requesting and receiving accommodations, on October 2, 2013, the City enacted Local Law 78, the Pregnant Workers Fairness Act, to af rmatively require employers to reasonably accommodate “the needs of an employee for her pregnancy, childbirth, or related medical condition,” without necessitating that the employee’s limitation quali es as a disability to be protected.5
The legislative history of the Pregnant Workers Fairness Act re ects the growing recognition that expanded protections for employees related to pregnancy, childbirth, and related medical conditions are increasingly necessary. Given the often time-sensitive nature of accommodations needed for pregnancy, childbirth, and related medical conditions, and the relatively short duration of the need, reasonable accommodations related to pregnancy, childbirth, and related medical conditions are intended to be liberally granted so that employees may continue working without compromising their health or safety. With an overwhelming majority of women working late into their pregnancies and an increasing number of families relying on the income of working women as primary breadwinners,6 protecting an individual’s right to maintain stable employment while raising a family is increasingly important to the overall health and well-being of families and children.
These definitions are intended to help people understand the following guidance as well as their rights and responsibilities under the NYCHRL.
III. VIOLATIONS OF THE NEW YORK CITY HUMAN RIGHTS LAW’S PROHIBITIONS ON PREGNANCY DISCRIMINATION
A. Disparate Treatment
Pregnancy discrimination is a form of gender-based discrimination under the NYCHRL and is prohibited in employment, housing, and public accommodations. Treating an individual less well than others because of their pregnancy, or perceived pregnancy, is discrimination and a violation of the NYCHRL. To establish disparate treatment under the NYCHRL, an individual must show that the treatment or adverse action was at least in part motivated by discriminatory animus. An individual may demonstrate this through direct evidence of discrimination or indirect evidence that gives rise to an inference of discrimination. Once an individual puts forward indirect evidence of discrimination, the burden shifts to the covered entity to demonstrate a non-discriminatory justi cation for the alleged conduct. If the covered entity is able to do so, the burden shifts back to the aggrieved individual to show either that the proffered non-discriminatory motive was pretextual, false, or misleading, or that direct or circumstantial evidence indicates that discrimination motivated the conduct at least in part.
1. Treating Individuals Less Well Because of Their Pregnancy
While adverse treatment may be overt, such as refusing to accept a rental application for an apartment because the applicant is pregnant or ring an employee because they are pregnant, discriminatory conduct on the basis of pregnancy often manifests itself in more subtle and patronizing ways. Such subtle forms of discrimination are actionable under the NYCHRL because they subject pregnant workers to lesser treatment. Whether intentional or unintentional, these actions push pregnant individuals out of the job market, disrupt earnings, hamper economic advancement, and violate the NYCHRL.
Gender-based harassment related to pregnancy is a form of discrimination, and may consist of a single incident7 or repeated acts or behavior. Unlawful harassment exists when the behavior creates an environment or culture of sex stereotyping, degradation, humiliation, bias, or objectification. Under the NYCHRL, gender-based harassment related to pregnancy covers a broad range of conduct that causes an individual to be treated less well because of their pregnancy. While the severity or pervasiveness of the harassment is relevant to damages, the existence of differential treatment based on pregnancy is sufficient under the NYCHRL to state a claim of harassment. Harassment may include comments about a pregnant individual’s weight or appearance, their age in relation to their pregnancy, their commitment to their job, or their ability to focus.
Examples of Violations
2. Policies that Single Out Pregnant Individuals
Any policy that singles out pregnant individuals is unlawful disparate treatment under the NYCHRL unless the covered entity can demonstrate a legitimate non-discriminatory justi cation for the distinction. Discriminatory policies may be directed at individuals who are currently pregnant, or those believed capable of or likely to become pregnant in the future. Unlawful policies include those that categorically exclude pregnant workers or workers who are capable of becoming pregnant from speci c job categories or positions, deny entrance to pregnant individuals to certain public accommodations, or refuse to serve certain food or drinks to pregnant individuals or individuals perceived to be pregnant. While covered entities may attempt to justify certain categorical exclusions based on maternal or fetal safety, using safety as a pretext for discrimination or as a way to reinforce traditional gender norms or stereotypes is unlawful.
Examples of Violations
3. Actions Rooted in Stereotypes or Assumptions Regarding Pregnancy
Judgments and stereotypes about how pregnant individuals should behave, their physical capabilities, and what is or is not healthy for a fetus are pervasive in our society and cannot be used as pretext for unlawful discriminatory decisions in employment, housing, and public accommodations. Adverse treatment of pregnant individuals based on assumptions and stereotypes about the capacity, reliability, or dedication of pregnant workers is similarly unlawful under the NYCHRL. Assumptions about a pregnant worker’s commitment to their job or career, for example, are often rooted in traditional gender norms around mothering and women in the workforce, and may not be used to justify disparate treatment.
Examples of Violations
B. Failure to Provide Reasonable Accommodations in Employment Based on Pregnancy, Childbirth, or a Related Medical Condition
The NYCHRL requires an employer to provide reasonable accommodations for an employee’s pregnancy, childbirth, or a related medical condition that will allow the employee to perform the essential requisites of the job, so long as the employer knew or should have known of the employee’s pregnancy, childbirth, or related medical condition.8 Reasonable accommodation is de ned as such accommodation that can be made that shall not cause undue hardship “in the conduct of the covered entity’s business.”9 While reasonable accommodations for individuals with disabilities under the NYCHRL have historically included medical conditions related to pregnancy or childbirth, the enactment of the Pregnant Workers Fairness Act obviated the need to request accommodations in employment through the disability framework. Employees can now request accommodations from employers based on pregnancy, childbirth, or related medical condition regardless of whether their medical condition amounts to a disability.10
Under federal law, the Pregnancy Discrimination Act of 1978 requires equal treatment for all workers “similar in their ability or inability to work.”11 Going well beyond federal protections, the NYCHRL protects the rights of pregnant individuals by requiring employers to make reasonable accommodations for pregnancy, childbirth, or related medical condition regardless of whether and to what degree other employees are accommodated.12 Minor or temporary modi cations to work schedules, requests for temporary shift reassignments, additional breaks or requests to sit during shifts, and temporary unpaid leave, regardless of whether they are offered to other employees, must be granted absent evidence that such accommodations will pose an undue hardship for the employer or that they will prohibit an employee from satisfying the essential requisites of the employee’s position.13
To establish discrimination on the basis of an employer’s failure to provide a reasonable accommodation, the aggrieved individual must show: (1) they are pregnant, have recently experienced childbirth, or have a medical condition related to pregnancy or childbirth; (2) they requested a reasonable accommodation due to pregnancy, childbirth, or related medical condition, or the employer knew or should have known that they were in need of an accommodation due to pregnancy, childbirth, or related medical condition; and (3) the employer failed to provide a reasonable accommodation.
1. Process for Requesting or Offering Reasonable Accommodations
a. Initiating a Cooperative Dialogue
When an employer learns, either directly or indirectly, that an employee requires an accommodation due to pregnancy, childbirth, or related medical condition, an employer must engage in a cooperative dialogue with the employee. Where an employee has not requested an accommodation, the employer has an af rmative obligation to initiate a cooperative dialogue when the employer: (1) 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 (2) has a reasonable basis to believe that the issue is related to pregnancy, childbirth, or related medical condition. If an employer approaches an employee to initiate a cooperative dialogue and the employee does not reveal that they are pregnant in that conversation, the employee does not waive their opportunity to reveal their pregnancy and initiate a cooperative dialogue with their employer at a later time.
In order to avoid situations in which employers are not sure whether employees are aware of their right to request reasonable accommodations and engage in a cooperative dialogue, the NYCHRL requires employers to provide a notice of rights to all new employees detailing their rights to be free from discrimination based on pregnancy, childbirth, or related medical condition. Such notice may also be conspicuously posted at an employer’s place of business in an area accessible to employees.14
b. Engaging in a Cooperative Dialogue
The purpose of a cooperative dialogue is to ensure that employers understand the individualized needs of their employees and have the opportunity to explore the various ways in which they can meet those needs. Without this type of dialogue, employees and employers may not realize the full universe of available accommodations. The employer need not provide the specific accommodation sought by the employee so long as they propose reasonable alternatives that meet the specific needs of the employee or that specifically address the limitation at issue.
A cooperative dialogue involves an employer communicating in good faith with the employee in an open and expeditious manner, particularly given the time-sensitive nature of these requests. The employer may not challenge the validity of the request, but should focus on understanding the need for the request and how the request can be accommodated, without making assumptions about what requests are reasonable or unreasonable. The dialogue may be in person, by phone, or via electronic means.
In evaluating whether or not an employer has engaged in a cooperative dialogue in good faith with an employee, the Commission will consider various factors, including, without limitation: (1) whether the employer has a written policy for employees about how to request accommodations based on pregnancy, childbirth, or related medical condition; (2) whether the employer responded to the request in a timely manner in light of the urgency of the request; (3) whether the employer attempted to explore the existence and feasibility of alternative accommodations or alternative positions; and (4) whether the employer attempted to obstruct or delay the cooperative dialogue or in any way intimidate or deter the employee from requesting the accommodation.
c. Concluding a Cooperative Dialogue
A cooperative dialogue is ongoing until one of the following occurs: (1) a reasonable accommodation is reached; or (2) the employer reasonably arrives at the conclusion that (i) there is no accommodation available that will not cause an undue hardship to the employer, or (ii) that no accommodation exists that will allow the employee to perform the essential requisites of the job. Once a conclusion is reached, either to offer an accommodation, or that no accommodation can be made, an employer should promptly notify the employee in writing of the determination.
Where an accommodation proposed by an employee is immediately agreed to by an employer, the cooperative dialogue will have been successfully completed. Under such circumstances, the cooperative dialogue will consist solely of the employee making the request and the employer granting the accommodation.
As an employee’s condition changes over time, an employee may make new requests for accommodations. Each time an employee makes a new request, the employer must engage in a cooperative dialogue with the employee.
d. Requesting Medical Documentation
An employer may not require an employee to provide medical con rmation of pregnancy, childbirth, or related medical condition. An employer may only request medical documentation from an employee when: (1) an employee is requesting time away from work, including for medical appointments, other than the presumptive six to eight week period15 following childbirth for recovery from childbirth,16 and may do so only if the employer requests veri cation from other employees requesting leave-related accommodations for reasons other than pregnancy, childbirth, or related medical condition; or (2) an employee is requesting to work from home, either on an intermittent basis or a longer-term basis. If an employer believes that the provided documentation is insuf cient, the employer must request additional documentation, or, upon the consent of the employee, speak with the health care provider who provided the documentation before denying the request based on insuf cient documentation. An employer must always allow an employee to submit suf cient written veri cation should an employee not want their employer speaking with their medical provider.
Outside of the circumstances identi ed above, an employer may not require medical documentation under the NYCHRL for any other accommodation based on pregnancy, childbirth, or related medical condition.17
2. Failure to Engage in a Cooperative Dialogue
An employer’s failure to engage in a cooperative dialogue with an employee prior to denying a request for accommodation may be tantamount to a failure to accommodate. Without engaging in a cooperative dialogue, an employer will not be able to completely assess the individual needs of the employee. An employer who fails to provide a reasonable accommodation to an employee for their pregnancy, childbirth, or related medical condition without engaging in a cooperative dialogue will not be able to demonstrate that they explored all available options that could have met the employee’s needs and that no reasonable accommodation was available.
3. Employer Defenses
a. Undue Hardship
In determining what constitutes an undue hardship, the NYCHRL specifies the following factors to be considered:
(1) the nature and cost of the accommodation; (2) the overall financial resources of the facility or the faculties [sic] involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (3) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and (4) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.18
b. Essential Requisites of the Job
An employer may raise the affirmative defense that, even with a reasonable accommodation, the employee would not be able to satisfy the essential requisites of their job.19 This means that even when the accommodation does not create an undue hardship for the employer, if it would not enable the employee to perform the basic duties and responsibilities required of the position, the employer may deny the accommodation. In raising this defense, an employer must also show that there are no comparable positions available for which the employee is qualified that would accommodate the employee, and that a lesser position or an unpaid leave of absence is either not acceptable to the employee or would pose an undue hardship.20
c. Burden of Proof
Should an employer believe, after a cooperative dialogue with the employee, that no accommodation can be made without posing an undue hardship or that even with the accommodation the employee could not meet the essential requisites of the job, the burden will be on the employer to demonstrate these defenses by a preponderance of the evidence.
4. Types of Accommodations Based on Pregnancy, Childbirth, or Related Medical Condition
a. Minor Accommodations, Schedule Modifications, and Alternative Positions or Assignments
Such accommodations based on pregnancy, childbirth, or related medical condition will rarely pose an undue hardship on an employer. While many pregnant employees, or employees who have recently experienced childbirth or related medical condition, will be able to work without any need for modification, some may require modest and/or temporary accommodations to allow them to feel well and continue to work while maintaining a healthy pregnancy or recovery. Such accommodations include, without limitation:
Schedule modifications, job restructuring, and reassignment to a vacant position may also qualify as a reasonable accommodation which will allow an employee to continue working despite a limitation based on pregnancy, childbirth, or a related medical condition. Examples of such accommodations include, without limitation:
In considering such accommodations, an employer’s rst obligation is to accommodate an employee so that they may remain in their current position. When that is not possible, an employer may then consider whether the employee could be reassigned to a vacant position. In considering alternative positions, an employer may consider the quali cations necessary for the position and whether the pay, status, and bene ts are equivalent to the employee’s current position. When a comparable position is unavailable, an employer may then explore alternative positions that are not comparable. As a last resort, when no other accommodation can be made, an unpaid leave of absence may be offered as a temporary accommodation.
b. Leave Related to Childbirth
Leave requests to recover from childbirth must be granted absent an undue hardship. Should the leave request present an undue hardship, the employer must consider whether another accommodation, such as a shortened leave time, a reduced or modi ed work schedule, or working from home, would alleviate the hardship. An employer may only request medical documentation for leave requests beyond six weeks for a vaginal delivery and eight weeks for a caesarian section.21
Once an accommodation of leave has been granted, employers must reinstate workers returning from leave related to childbirth to their original job or to an equivalent position with equivalent pay and comparable seniority, retirement benefits, and other fringe benefits.
c. Accommodations Related to Lactation/Expressing Breast Milk
Lactation is a medical condition related to childbirth and therefore must be accommodated absent an undue hardship. Employers must provide reasonable time for an employee to express breast milk and may not limit the amount of time that an individual can use to express milk unless the employer can demonstrate that the time needed presents an undue hardship to the employer. In addition, absent undue hardship, an employer must provide a clean, sanitary, and private space, other than a bathroom, that is shielded from view and free from public intrusion from coworkers, along with a refrigerator to store breast milk in the workplace. A lactation space must be conveniently located and reasonably near the employee’s work station. An employee who wishes to express milk at their usual work station shall be permitted to do this so long as it does not create an undue hardship for the employer, regardless of whether a coworker, client, or customer expresses discomfort. Where an employer already provides compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.22
d. Accommodations Related to Abortions and Miscarriages
Miscarriages and abortions are directly related to pregnancy and childbirth and can impact an individual’s physical and emotional health. Individuals who have experienced a miscarriage or terminated a pregnancy are entitled to reasonable accommodations from their employers. An individual who has miscarried or terminated a pregnancy may, for example, require a period of unpaid leave to recover or a more exible schedule for a period of time to account for additional appointments related to the procedure or experience. If the request involves time away from work, an employer may request documentation from a medical or other service provider.
e. Accommodations Related to Fertility Treatments
Fertility treatment directly relates to the state of seeking to become pregnant and therefore employers must provide accommodations for such treatment. Individuals undergoing fertility treatment may need unpaid leave to allow them to attend appointments or a modi ed or exible work schedule. If the request involves time away from work to attend appointments, employers may require medical documents of appointments related to fertility. Employers must accommodate these requests absent an undue hardship.
C. Failure to Post or Provide Notice Regarding Pregnancy Protections
The NYCHRL requires that employers provide all employees with written notice of their right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions.23 Notice is effectuated by providing notice to all new employees at the commencement of employment. Employers may also post the notice in their place of business in an area accessible to all employees.24 Failure to comply with the notice requirement violates the NYCHRL. Employers may use the Commission’s Pregnancy and Employment Rights poster – available on the Commission’s website – to provide notice to their employees.
D. Policies or Practices that Have a Disparate Impact on Pregnant Workers
In the context of employment, housing, and public accommodations, when a neutral policy or practice, regardless of intent, has a disparate impact on individuals who are pregnant or perceived to be pregnant, the policy or practice violates the NYCHRL.25 Facially neutral policies or practices can include, without limitation, light duty policies, hiring practices, and housing restrictions. To establish a claim for disparate impact, an individual or the Commission must demonstrate that a covered entity has a policy or practice, or a group of policies or practices, that in effect exclude or disproportionately impact individuals based on pregnancy.
For example, a policy that permits workers to be moved to light duty for on the job injuries only would likely have a disparate impact on pregnant workers and constitute a violation of the NYCHRL unless the covered entity can show that the alleged policy or practice bears “a significant relationship to a significant business objective of the covered entity or does not contribute to the disparate impact.”26
A covered entity may not retaliate against an individual because they: (1) oppose a discriminatory practice prohibited by the NYCHRL; (2) make a charge or file a complaint with the Commission, the employer, or any other agency; or (3) testify, assist, or participate in an investigation, proceeding, or hearing related to an unlawful practice under NYCHRL.27 In order to establish a prima facie claim for retaliation, an individual must show: (1) that the individual engaged in protected activity; (2) the employer was aware of the activity; (3) that the individual suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.28
In the context of employment, the act of requesting a reasonable accommodation based on pregnancy, childbirth, or related medical condition, or engaging in a cooperative dialogue with an employer based on such request, is protected activity under the NYCHRL. An adverse employment action based on such activity is therefore retaliation under the NYCHRL. The purpose of the retaliation provision is to enable individuals to speak out against discrimination and to freely exercise their rights under the NYCHRL. Freedom from retaliation helps ensure that individuals needing accommodations will request them, and promotes a culture where people are less afraid to exercise their rights. A worker needing an accommodation based on pregnancy, childbirth, or related medical condition must be able to seek assistance and engage in the cooperative dialogue with employers without fear of adverse consequences for making the request.
IV. BEST PRACTICES
Employers should develop a written policy to provide information to employees on the cooperative dialogue process as it relates to accommodations for pregnancy, childbirth, or a related medical condition. The policy should include information about how employees may request accommodations and what a cooperative dialogue looks like. Such policies should be distributed to all employees. In addition, any time an employee notifies an employer about their pregnancy, the employer should provide that employee with a copy of the policy and remind them of the availability of accommodations.
Employers should also document all efforts to initiate, engage in, and conclude the cooperative dialogue with an employee. Employers should keep a log for each employee in which they document the following information:
Employers may be required to share this information with the Commission in the course of an investigation. Prompt responses to Commission requests for information or documents may help avoid a Commission-initiated investigation into employment practices.
Employers should make all efforts to keep communications regarding requests for reasonable accommodations and all circumstances surrounding an employee’s pregnancy, childbirth, or related medical condition confidential.
1 Local Law No. 85 § 1 (2005); see N.Y.C. Admin. Code § 8-130(a) (“The provisions of this title 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 worded comparably to provisions of this title, have been so construed.”)
4 See Wilcox v. Cornell Univ., 986 F. Supp. 2d 281, 285 (S.D.N.Y. 2013) (noting that “[u]nder Title VII, the NYSHRL, and the NYCHRL, discrimination on the basis of a woman’s pregnancy – including because of any related medical conditions – constitutes discrimination on the basis of sex.”) (internal quotations and citations omitted).
6 A Better Balance & National Women’s Law Center, “It Shouldn’t Be a Heavy Lift: Fair Treatment for Pregnant Workers,” at 1, 3 (2013), http://www.abetterbalance.org/web/images/stories/ItShouldntBeAHeavyLift.pdf (last visited May 4, 2016).
7 See Cardenas v. Automatic Meter Reading Corp., OATH 1240/13, Dec. & Order., 2015 WL 7260567, at *8 (Oct. 28, 2015) (citing Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 41 n.30 (App. Div. 2009)).
10 An employee may also be entitled to reasonable accommodations based on disability if the pregnancy, childbirth, or related medical condition qualifies as a disability under the NYCHRL or other laws.
14 N.Y.C. Admin. Code § 8-107(22)(b); see infra p. 11-12.
15 In accordance with the New York State Insurance Fund, the Commission considers six weeks a presumptive recovery period after vaginal delivery and eight weeks a presumptive recovery period after a caesarian section. See New York State Insurance Fund, “Claims FAQs, How are pregnancy-related disability claims processed,” http://ww3.nysif.com/DisabilityBenefits/ ClaimantServices/ClaimsFAQs.aspx#seventeen (last visited April 27, 2016).
17 An employee who is covered by the Family Medical Leave Act of 1993 (“FMLA”) may be required to provide medical documentation for leave taken pursuant to federal law, dependent on the circumstances of the leave request and whether the employer is bound by FMLA. See 29 U.S.C. § 2601 et seq.
22 The Fair Labor Standards Act and New York State Labor Law also require employers to provide certain accommodations for employees to express breast milk. See U.S. Dep’t of Labor, Wage and Hour Div., “Fact Sheet #73: Break Time for Nursing Mothers under the FLSA,” https://www.dol.gov/whd/regs/compliance/whdfs73.pdf (last visited May 5, 2016); N.Y. Lab. L. § 206-c.