The Pregnancy Discrimination Guide below provides a detailed overview which can help you understand your rights.
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Jump to Topic hidePregnancy discrimination occurs when an employer treats an employee (or job applicant) less favorably because she is pregnant or plans to be pregnant in the future.
Essentially, your employer makes job-related decisions based on your pregnancy and not your qualifications.
Laws exist at the federal, state, and local levels prohibiting employers from engaging in pregnancy discrimination.
Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy, childbirth, and related medical conditions as it constitutes unlawful sex discrimination.
The PDA applies to employers with at least 15 employees.
Under the PDA, your employer cannot:
Is pregnancy a disability? Under the PDA, a pregnancy-related condition like bed rest, severe morning sickness, or childbirth is considered a temporary disability.
Therefore, an employer must treat pregnant employees the same as non-pregnant, temporarily disabled employees.
Employers may be required to provide duty modifications, alternative assignments, or a leave of absence.
However, if another non-pregnant, temporarily disabled employee is not entitled to leave or benefits, then a pregnant woman is similarly not entitled to leave or benefits (absent protections under other laws discussed below).
Also, employment decisions based on employee conduct caused by pregnancy are not prohibited.
For example, if you are late because of morning sickness, your employer does not have to treat you differently than an employee who was late for other health reasons.
The New York State Human Rights Law (NYSHRL or “state Human Rights Law”) offers similar protections as the PDA but applies to more employers.
Under the state Human Rights Law, employers with at least four employees are prohibited from discriminating on the basis of sex, which is interpreted to include discrimination based on pregnancy, childbirth, and related conditions.
The state Human Rights Law treats “pregnancy-related conditions” as temporary disabilities. Therefore, covered employers must provide reasonable accommodations to pregnant employees with a pregnancy-related condition.
A reasonable accommodation is an action that enables the employee to perform her job functions and can include rest breaks, modified job duties, or transfers to a less dangerous job.
An employer can only avoid providing reasonable accommodation if it demonstrates it would be an undue hardship for the business (e.g., too expensive or difficult to implement).
You may need to provide medical documentation verifying your pregnancy-related condition or need for accommodation.
Under the NYSHRL, an employer also cannot compel a pregnant employee to take a leave of absence as long as the employee can do her job.
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New York City offers even greater protection thanks to the New York City Human Rights Law (NYCHRL or “city Human Rights Law”), as amended by the Pregnant Workers Fairness Act.
Unlike the PDA and state Human Rights Law, the city Human Rights Law does not require a pregnancy-related limitation to qualify as a disability for an employer to provide reasonable accommodations.
Instead, the City law requires employers to provide accommodations simply because you are pregnant.
Under the NYCHRL, employers must provide reasonable accommodations when the need is based on pregnancy, childbirth, or a related medical condition.
This law also applies to women undergoing fertility treatments, or after a miscarriage or abortion. Your employer cannot request a physician’s note for a minor accommodation.
Pregnancy discrimination comes in many forms.
If you can complete your job duties and do not request any modifications, your employer must allow you to continue performing your job while pregnant.
However, if you ask for accommodations, your employer has different requirements depending on the laws that apply to your situation. To summarize:
Reasonable accommodations may include:
Leave laws are intended to provide new parents the opportunity to spend time caring and bonding with a new child without fear of losing their jobs.
Each law provides for different lengths of leave and has different eligibility requirements.
The Family and Medical Leave Act (FMLA) is a federal law that entitles an employee to take up to 12 weeks of unpaid leave in connection with childbirth and pregnancy (including adoptive and foster parents, and fathers).
This law applies to employers with at least 50 employees working within a 75-mile radius of each other.
To qualify for FMLA leave, an employee must have worked for the employer for at least 1250 hours in the last 12 months.
The leave may be taken anytime during the first year after the birth of the child, and the employer must give the employee their job back (or an equivalent position) upon return to work.
FMLA leave is unpaid. However, you may be entitled to disability benefits or pay based on other laws.
Consult with an experienced employment lawyer [insert link] to review your circumstances and identify the leave and payments available to you.
New York has one of the nation’s most robust paid family leave policies. As of January 1, 2018, most employees working in New York State for private employers are eligible for paid family leave to bond with a newborn or adoptive child.
The program is funded through payroll contributions unless the employer self-funds.
To be eligible, an employee must be a full-time employee (working 20 or more hours per week, eligible after working 26 consecutive weeks) or part-time employee (working less than 20 hours per week, eligible after working 175 days); independent contractors, freelancers, and farmworkers do not qualify.
You are guaranteed your same or comparable job after leave ends, so the leave is job-protected.
You can also continue your health insurance while on paid family leave, but you must continue to pay your portion of your insurance premiums.
The amount of paid family leave will change over a four-year, phase-in period. Starting in 2018, you receive 50% of your average weekly wage for an eight-week period (capped at 50% of the state average weekly wage).
By 2021, you receive 67% of your average weekly wage for 12 weeks (capped at 67% of the state average weekly wage).
Leave laws can be confusing and have different notice requirements to take advantage of them.
It is advisable to consult with your human resources department as well as an employment lawyer with any questions about pregnancy-related leave and benefits.
New York provides short-term disability insurance to pregnant and postpartum women. Under this program, women are given time off and paid partial wages for issues relating to the mother’s health conditions such as pregnancy complications or recovery from childbirth.
Recipients receive 50% of pay, up to a maximum of $170 per week. The duration of benefits is determined by a doctor’s assessment of how long you are unable to work.
Women have a legal right to express/pump breast milk in the workplace. Employers are required to provide nursing mothers with the following:
These requirements apply to all employers in New York State, public and private. If you intend to pump, you are required to notify your employer in advance—the best time is before returning to work.
Your employer does not have to pay you for the breaks, but they are required to let you work before or after your shift to make up the time (within regular company hours).
If you believe your employer has discriminated against you in violation of the laws discussed in this Guide or retaliated against you for asserting your rights, you have options.
Due to the complicated nature of these laws, you should consult with an employment lawyer [insert link] experienced at handling pregnancy discrimination to review your circumstances and develop the best course of action.
Depending on the nature of your relationship with your employer, you first might consider addressing the discrimination directly with your employer.
If this is not an option, or the employer refuses to remedy the misconduct, you can file a formal complaint with the Equal Employment Opportunity Commission (EEOC) or New York Division of Human Rights (or other applicable state or local agency), or file a lawsuit in state or federal court.
The nature of your claims will dictate where you need to file and what.
For instance, federal claims will be handled by federal venues like the EEOC or federal court, whereas state claims are controlled by the New York Division of Human Rights or New York State courts.
Some complaints must first be filed with the appropriate agency before you can file a lawsuit.
For example, claims for violating federal disability discrimination laws must be filed with the EEOC first, but if your employer violated the FMLA, you could go straight to court without any agency filing.
Money damages. This is one of the more common remedies and includes:
Injunctive Relief. A court may require an employer to stop specific behaviors or practices, or the court could order your reinstatement.
Reinstatement, or getting your job back, is uncommon because of the possible tension between you and your former employer. Besides, courts try to avoid displacing the person who was hired to replace you.
Punitive Damages. Punitive damages are granted to punish the employer and deter the company from repeating unlawful acts.
These damages are only awarded in exceptional cases where an employer acted intentionally or egregiously. The state Human Rights Law prohibits punitive damages awards.
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