The New York City Commission on Human Rights has proposed rules relating to employers’ obligations based on an employee’s pregnancy, childbirth, or related medical conditions under the New York City Human Rights Law (NYCHRL). These rules details employer’s obligations in discrimination and accommodation cases.
In addition, the proposed rules also outline prohibited behavior employers need to be mindful of. Under the NYCHRL employers may not treat employees differently or “less well” based on their actuarial or perceived pregnancy, childbirth, or related medical condition. The rules pay close attention to:
- Unlawful treatment based on assumptions or stereotypes;
- Policies based on pregnancy, childbirth, or related conditions; and
- Policies or practices that unintentionally discriminate against employees based on pregnancy, childbirth, or a related medical condition.
Under these rules, the following actions are unlawful:
- Refusal to hire someone otherwise qualified for a job because the applicant is pregnant; the employer makes comments about a pregnant employee’s weight gain; management not interfering after employees make comments about a pregnant employee’s weight, or an employer does not assign an employee to a new project after learning they are pregnant.
- Policies refusing to hire pregnant individuals; requirement of all pregnant employees to take leave at a certain month in their pregnancy; policy requiring medical clearance from pregnant employees to perform certain job duties, or policy of not hiring female job applicants of childbearing age.
- Policies permitting light-duty assignments for those injured on the job, but not for pregnant employees, or a policy that limits employees to three 15-minute breaks without any exceptions, and nothing additional for those who are breastfeeding.
In addition to expanding upon these rules and regulations, the rules also express what level of accommodation must be given by employers to pregnant employees or those with related medical conditions.
Even if a pregnant employee has not requested an accommodation, the employer still has an obligation to initiate cooperative dialogue with the employee if the employer has:
- 1. Knowledge that the employee’s performance has been impacted or the changed performance could lead to adverse consequences; and
- 2. Reason to believe that the change is related to pregnancy, childbirth, or related medical conditions.
The issue becomes when an employee is not comfortable sharing their pregnancy or related status, and the employee then begins to say the employer did not treat the employee with respect.
The courts will use the following factors to determine if the employer acted in good faith:
- Does the employer have a written policy for employees about how to request accommodations based on pregnancy, childbirth, or a related medical condition;
- Did the employer respond to the request in a timely manner;
- If the employer tried to explore alternative accommodations or alternative work assignments; and
- If the employer tried to block or delay the cooperative dialogue or intimidate or deter the employee from requesting the accommodation.
The general rule for employers is that cooperative dialogue must continue until a reasonable accommodation is reached or the employer concludes that all available accommodations will cause undue hardship to the employer, or no accommodation exists that will allow the employee to perform the essentials of the job.
Employers were invited to comment on the rules before a public forum was held in November.
Pregnancy Discrimination in NYC Workplaces: Brown Kwon & Lam
As a pregnant employee or employee with a related condition, you have rights in the workplace to reasonable accommodation to ensure your job is protected. But when employment policies or conditions within the workplace make it difficult, know you can seek legal guidance.
If your employer is not treating you fairly or is being discriminatory against you, you need to speak out. At Brown Kwon & Lam, we will fight for your rights, and those of your family, to ensure you are treated fairly and with respect. Contact us today for a consultation.