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New York City Council unanimously passed the Pregnant Workers Fairness Act

On September 24, 2013, the New York City Council unanimously passed the Pregnant Workers Fairness Act, an amendment to the New York City Human Rights Law (NYCHRL) to require employers (with four or more employees) to provide reasonable accommodations to pregnant employees ; the amendment also prohibits discrimination based on childbirth or other related medical condition. The amendment will become effective 120 days after enactment and is currently before the Mayor’s Office for consideration and the law will likely go into effect in early 2014.

The amendment is aimed at protected employees who need temporary modifications to continue safely working during pregnancy, like “bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor.” This amendment will mainly have an impact on pregnant women working retails jobs or service jobs (mainly low earning pregnant employees).

Under the existing NYCHRL, as well as Title VII of the Civil Rights Act of 1964, as amended, discrimination against pregnant women is prohibited as unlawful gender-based discrimination. They require employers to treat pregnant employees the same as other employees with respect to accommodations and that job modifications are not generally required for employees experiencing a normal pregnancy. Early this year, the Women’s Equality Act, a much broader law (it includes protections similar to the Pregnant Workers Fairness Act), was introduced in the State of New York but stalled in the Legislature during the last session. The Pregnancy Discrimination Act, a federal law protecting pregnant women was found to have too many loopholes and didn’t protect pregnant employees in some set of circumstances. It is interesting to note that the Pregnancy Discrimination Act does not require accommodation. As stated in the New York time’s article, « an employer’s refusal to allow a pregnant woman to stay off ladders during her third trimester or keep a bottle of water nearby might not qualify as discrimination if all workers are subject to the same restrictions. »

The new local law requires employers to provide “reasonable accommodation” to their employees but does not include accommodations that would cause “undue hardship” to an employer’s business. It should be noted that the accommodation is presumed to be reasonable unless the employer can prove that it is not. Besides, the employer can also plead as an affirmative defense that the employee was not qualified to perform the essential tasks of the job.

If you believe you may have are pregnant and believe your are being discriminated against by your employer, please contact The Harman Firm, LLP.

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