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Pregnancy Discrimination

I’m Pregnant. Which Specific Laws Protect Me?

Federal LawThe Pregnancy Discrimination Act of 1978 – Changed the definition of sex/gender discrimination to specifically include pregnancy in Title VII, which is the basic federal anti-discrimination law, 42 USCS § 2000e(k);

State LawThe NY State Human Rights Law – Was changed in 2015 to cover “pregnancy related conditions”, which are now automatically considered as temporary disabilities, and are entitled to legal protection.  It is now a clear violation of state law for an employer to refuse a reasonable accommodation for a known pregnancy related condition of an employee, or even to refuse to hire a woman because she is pregnant – as long as the woman would be able to perform the job functions with a reasonable accommodation.Payments of wages or benefits have to be made on the same basis as payments to other employees who are off the job due to a temporary non-occupational injury or illness which was not job related, Executive Law §§296(g), 296(3)(a).

City LawThe NY City Human Rights Law – Was Changed by Local Law 78 of 2013 to specifically protect pregnant women from discrimination, and to give them definite rights to reasonable workplace accommodations. The City law gives pregnant mothers and women who have recently given birth more rights than any of the other laws.The City law specifically says that it is supposed to provide more protection to pregnant women (and to everyone else) than either the state or the federal laws.In fact, the City Council, which passes the New York City laws,specifically said that it wanted the City law to give workers more protection than either the federal or New York State laws, which were being applied too conservatively by judges.The NY City Human Rights Law was intended to, and did, fix this problem.

What Rights do These Laws Give Me?

  • You have the right not to be fired or harassed for being pregnant.
  • You have the right not to be fired or harassed for being pregnant.
  • You cannot be forced to take unpaid leave because you are pregnant, as long as you can do the essential functions of the job, with or without reasonable accommodation.
  • Most importantly, these laws give you the right to reasonable accommodation, described more fully below.
  • If you ask for accommodation your Employer cannot discriminate against you or retaliate against you for it.
  • If the accommodation you ask for is too expensive or disruptive, the Employer should suggest other alternatives; it should be a give and take process.
  • If you Employer has at least 50 employees, you are covered by the FMLA, and you can take up to 12 weeks off without pay and get your job back when you return.
  • Under the New York State and City Laws, you can definitely make a request for more unpaid time off, for example, if there are complications in childbirth.However, you should always make the request in writing, ahead of time, and supported by medical evidence.The Courts will not expect Employers to hold jobs open indefinitely if they are not advised when you intend to go back to work. How long the Employer should be expected to hold your job open depends on many different factors, for example, the size of the business. It is generally reasonable to expect a large corporation which has several hundred people doing your job to replace you in a year when you are ready to go back, particularly if you are ready to wait for the next opening, but it’s very different for a shop with only 5 or 6 employees.

What are some Examples of “Reasonable Accommodation” for a Pregnant Employee?

The Employer might have to:

  • Provide a more accessible work site.
  • Change the way certain tasks are performed.
  • Buy or modify certain equipment.
  • Allow additional bathroom breaks.
  • Allow a modified work schedule.
  • Permit more frequent breaks if the job requires standing for long periods of time.
  • Provide other employees to assist with manual labor.
  • These are just some examples, because there are no hard and fast rules. For example, if your doctor says that you must avoid certain substances or certain specific activities, and gives you a note to that effect, your Employer will probably do that, unless the Employer can show that it would be an “Undue Hardship” for him/her, which is usually not that easy for the boss to do, particularly if it is a big company.

What If My Employer Doesn’t Want to Talk to Me About Reasonable Accommodations?

If your Employer knows that you are pregnant, he/she is legally required to engage in what is called the “Interactive Process”. Where you request an accommodation, your Employer has to at least consider your request, and in some cases, may even have to engage in a discussion with you about an accommodation even if you don’t ask for one. In some cases, you might want to put your Employer in some communication with your doctor, or try to see if a reasonable compromise can be worked out.The purpose of the law is to find a reasonable compromise that will allow the pregnant [or disabled] employee to continue working productively on the one hand, and which will not impose too great of a hardship or expense on the business owner, on the other hand. If your Employer refuses to consider or discuss any accommodation with you, this does not automatically mean that you win the case, but it will usually mean that your Employer cannot get the case dismissed without a trial. It will also be a very difficult case for the Employer to win if the accommodation you asked for was reasonable and would have enabled you to do your job reasonably well. If this happens, the case will almost always be settled, and probably on favorable terms.

If My Case Goes to Court, Who Has to Prove Whether a Requested Accommodation was “Reasonable”, or if it was an “Undue Hardship” to the Employer?

Under the City Human Rights Law, the Employer has to prove that there was no safe and reasonable accommodation available. This is a fantastic provision, and gives the Employee a big advantage in court. Under the State Human Right Law, we have the burden of showing that a reasonable accommodate existed. However, under any of these laws, the Employer has the burden of proving to the jury that the accommodation would have created an “Undue Hardship” in the conduct of the business. In deciding this, the jury is allowed to consider:

  • The nature and cost of the accommodation.
  • The overall financial resources of the facility or the facilities involved.
  • The number of persons employed at such facility.
  • The overall financial resources of the covered entity.
  • The overall size of the business.
  • As a practical matter, if either side was unreasonable, arrogant, or showed a lack of flexibility in the pre-lawsuit discussions about the accommodation, that side will be at a distinct disadvantage with the Court and with the jury. The Boss Should Remember – the workplace is not a level playing field, but the Courtroom is.The Employee would do well to remember this too.

As you can see, it is very difficult for a large corporation to tell the jury that they didn’t want to pay the cost of a reasonable accommodation for a pregnant woman.On the other hand, if it’s a very small business, and if the accommodation was expensive and would have seriously disrupted regular operations, that’s a very different matter and you can expect a different result.Each case has to be closely analyzed according to the particular facts, the employee’s particular pregnancy and medical situation, the tasks involved in the job, the type of business and the size of the business. Don’t be afraid to call us if you need guidance on these issues.

Law Offices of William Cafaro

 

108 West 39th Street
Suite 602
New York, NY, 10018

 

Fax: (212) 583-7401

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