New: NYC Enforcement Guidance on Pregnancy Discrimination

The New York City Commission on Human Rights just announced the publication of its “Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy: Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22),” which is a must-read for NYC employers.

Woman, Pregnancy, Female, Lady, Pregnant

It sets out what is considered pregnancy discrimination under NYC law – which is must broader than under Title VII and much more broadly construed.  It discusses things like best practices, reasonable accommodation, and the interactive or “cooperative” process.

I’ve posted a lot about pregnancy discrimination under Title VII.  Title VII forbids employers from, among other things, discriminating against pregnant employees purporting to use concerns about their health or safety.  The Pregnancy Disability Act (“PDA”) of Title VII is often invoked by pregnant employees who are fired because the employer feels that she should not be working – either for her own health or the health of the fetus.

I wrote on November 20, 2015 about an employer who fired a housekeeper after learning that she was pregnant, contending that “it could not allow her to continue to work as a housekeeper because of the potential harm to the development of her baby.”   An EEOC attorney said that “Employers may not bar pregnant employees from work because of outdated myths or stereotypes.”

The EEOC is keen to pursue such cases. Not long ago it announced the settlement of a PDA case where a Texas-area donut franchise allegedly forced an employee into unpaid leave when it’s owner/general manager “received information that [she] might be pregnant.”   The EEOC claimed that the owner refused to permit her to work “unless she provided a doctor’s release indicating that her pregnancy was not ‘high-risk’” (PDA violation) and then fired her when she complained about this (retaliation). For this, the company had to pay $45,000 in settlement.

The EEOC’s press release stated that “Under the PDA, an employer cannot force a pregnant employee, or one the employer suspects of being pregnant, to provide medical documentation proving that the employee can continue working, unless the employee requests some pregnancy-related accommodation. Further, if an employee complains about pregnancy discrimination, the employer must investigate that complaint and must not take any retaliatory employment action against her.”

And an EEOC attorney said that “An employer that imposes its own personal beliefs and concerns about an employee’s pregnancy on her violates federal law and invites legal action.”

With the NYC Commission’s new Enforcement Guidance, you can bet that employers will be ever more in the cross-hairs of all levels of government when it comes to issues of pregnancy discrimination.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]