The NYC Commission on Human Rights recently issued its Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy (as set forth in Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22)). (Press release here.)
The Legal Guidance provides, in part:
Pregnancy discrimination under the NYCHRL is discrimination based on gender. Prior to 2014, however, people who needed accommodations in the workplace relating to pregnancy or for medical conditions related to pregnancy or childbirth had to show that their conditions amounted to a temporary disability. As a result, people with routine pregnancies were regularly denied even the most minor accommodations and forced to work under conditions that compromised their pregnancies. Realizing that the law, as it was often interpreted, excluded individuals with routine pregnancies from requesting and receiving accommodations, on October 2, 2013, the City enacted Local Law 78, the Pregnant Workers Fairness Act, to affirmatively require employers to reasonably accommodate “the needs of an employee for her pregnancy, childbirth, or related medical condition,” without necessitating that the employee’s limitation qualifies as a disability to be protected. …
While adverse treatment may be overt, such as refusing to accept a rental application for an apartment because the applicant is pregnant or firing an employee because they are pregnant, discriminatory conduct on the basis of pregnancy often manifests itself in more subtle and patronizing ways. Such subtle forms of discrimination are actionable under the NYCHRL because they subject pregnant workers to lesser treatment. Whether intentional or unintentional, these actions push pregnant individuals out of the job market, disrupt earnings, hamper economic advancement, and violate the NYCHRL.
Gender-based harassment related to pregnancy is a form of discrimination, and may consist of a single incident7 or repeated acts or behavior. Unlawful harassment exists when the behavior creates an environment or culture of sex stereotyping, degradation, humiliation, bias, or objectification. Under the NYCHRL, gender-based harassment related to pregnancy covers a broad range of conduct that causes an individual to be treated less well because of their pregnancy. While the severity or pervasiveness of the harassment is relevant to damages, the existence of differential treatment based on pregnancy is sufficient under the NYCHRL to state a claim of harassment. Harassment may include comments about a pregnant individual’s weight or appearance, their age in relation to their pregnancy, their commitment to their job, or their ability to focus.
The Guidance also gives examples of violations, including “[a]n employer who does not hire someone otherwise qualified because they are pregnant” and “[a]n employer who jokes about a pregnant individual’s weight gain, and who repeatedly responds to that individual’s complaints about the jokes by stating that being pregnant is making the individual overly sensitive and emotional.”