Mark Goldstein contributed to the content of this post.
The NYC Human Rights Law (“NYCHRL”)—already one of the most liberal of its kind nationwide—recently became even more so when the NYC Council passed an amendment, by a resounding veto-proof majority of 47-0, that requires employers to “reasonably accommodate” pregnant employees. The new bill comes on the heels of another amendment, passed in early 2013, that prohibits discrimination based upon an applicant’s employment status.
Although the federal Pregnancy Discrimination Act of 1978 (“PDA”) and related state and city statutes have long since treated pregnancy as a trait protected from discrimination and retaliation, until Tuesday, none of these laws imposed any pregnancy-based “reasonable accommodation” obligations. Now, the NYCHRL does. And its obligations are significant.
What Does the New Law Require?
The amendment obligates NYC employers to reasonably accommodate not only an employee’s “pregnancy,” but also her “childbirth” and “related medical condition[s],” as long as the accommodation would enable her to perform her position’s essential functions, and unless the employer can meet the heavy burden of proving that a requested accommodation would cause “undue hardship.” Moreover, according to the Council, unpaid leave may not be enough. The Council has also provided a non-exhaustive list of possible accommodations that included “breaks to facilitate increased water intake” and “periodic rest for those who stand for long periods of time.” Employers also must disseminate (to both newly hired and existing employees), and must conspicuously display in the workplace, a “notice” detailing pregnant employees’ rights.
Finally, the potential penalties for non-compliance are stiff. They include not only the standard remedies available to an aggrieved employee via NYCHRL litigation, but also NYC Commission on Human Rights fines on employers, which can range from $50,000 to $250,000, and, in cases of extreme “willfulness,” implicate criminal sanctions as well.
How Does the New Law Affect My Company?
While the amendment undoubtedly is benevolent in intent, employers should brace for a spike in pregnancy-related discrimination claims, as well as additional obligations to monitor and manage pregnancy accommodation requests. Even before the amendment takes effect, employers should work with counsel to understand its provisions and to develop a roadmap for compliance.