Articles

The New York City Commission on Human Rights (the “Commission”) is the City agency that enforces the New York City Human Rights Law (“NYCHRL”). The NYCHRL prohibits, in part, unlawful discrimination in employment, public accommodations, and housing on the basis of pregnancy or perceived pregnancy, through its prohibitions on discrimination based on gender.

Last May, the Commission released guidance that defines violations of pregnancy protections under the NYCHRL. The Guidance lists five categories of potential violations: (1) failure to provide reasonable accommodations; (2) disparate treatment; (3) disparate impact; (4) retaliation; and (5) failure to provide the required notice. As the new Administration expresses less interest in certain enforcement issues, employers must be ready for the states and local agencies to step up enforcement.   New York State is a leader in this regard.  The following are the key points to consider.

1. Failure to Provide Reasonable Accommodations

The NYCHRL requires an employer to provide reasonable accommodations for an employee’s pregnancy, childbirth, or a related medical condition that will allow the employee to perform the essential requisites of the job, so long as the employer knew or should have known of the employee’s pregnancy, childbirth, or medical condition. Since pregnancy is a condition that becomes difficult to hide, it is hard for employers to argue “What? I didn’t know she was pregnant” as a defense.

A reasonable accommodation is one that can be made that does not cause undue hardship to the employer’s business. Employers should remember under the Pregnant Workers Fairness Act which took effect in January 2014, employees can request accommodations based on pregnancy, childbirth, or related medical condition regardless of whether their condition amounts to a disability.

Examples of accommodations may include:

• Minor or temporary modifications to work schedules
• Temporary shift assignments
• Additional breaks or requests to sit during shifts
• Temporary unpaid leave

                 TALK ABOUT IT: Employer Required to Engage in Cooperative Dialogue 

When an employer learns, either directly or indirectly, an employee requires an accommodation due to pregnancy, childbirth, or related medical condition, an employer must engage in a cooperative dialogue with the employee. This is not a suggestion, it is a mandate.

Even when an employee has not requested an accommodation, the Guidance provides the employer has an affirmative obligation to initiate a cooperative dialogue when the employer: (1) has knowledge that an employee’s performance at work has been affected or their behavior at work could lead to an adverse employment action; and (2) has a reasonable basis to believe that the issue is related to pregnancy, childbirth, or related medical condition. For example, assume an employee with a perfect attendance record all of a sudden starts showing up late to work and the employer has heard through the grapevine that she is expecting.  This is enough to require the cooperative dialogue.

If the employer approaches the employee to initiate a cooperative dialogue and the employee does not acknowledge their pregnancy, this does not mean they waive their right to engage in the dialogue in the future. It is possible they just are not ready to tell their boss the good news, yet.

The Guidance explains a cooperative dialogue involves an employer communicating in good faith with the employee in an open and expeditious manner, particularly given the time-sensitive nature of the requests. The employer may not challenge the validity of the request, but should focus on understanding the need for the request and how the request can be accommodated, without making an assumption about what requests are reasonable or unreasonable.

A cooperative dialogue is ongoing until a reasonable accommodation is reached or the employer reasonably concludes no accommodation is available that will not pose an undue hardship or no accommodation exists that will allow the employee to perform the essential requisites of the job. However, employers should consult Labor and Employment Counsel if they determine the requested accommodation is an undue hardship or that one simply cannot be made because the Commission will scrutinize this decision vigorously.   Whatever the determination, the employer should notify the employee in writing of the determination.

Remember DOCUMENT, DOCUMENT, DOCUMENT.

The Guidance suggests that an employer’s failure to engage in a cooperative dialogue prior to denying a request for a reasonable accommodation may be tantamount to a failure to accommodate – even if no reasonable accommodation is actually available.

    2.   Disparate Treatment

The Guidance also provides treating an employee less well than others because of pregnancy, or perceived pregnancy, is considered discrimination, violates the NYCHRL, and amounts to disparate treatment. Disparate treatment is sometimes shown by overt behavior such as firing an employee because they are pregnant but more times than not, it is more subtle. For instance, harassment may include comments about the pregnant individuals’ weight, appearance, or age; their commitment to their job; or their ability to focus on work.  Therefore, employers should be mindful before making comments about “how big” the employee is getting or how “it should be any day now.”

Also, most policies that single out pregnant individuals is unlawful disparate treatment. For instance, a policy that excludes pregnant workers from certain positions or duties would be unlawful.  While often employers create these policies out of a concern for the worker or unborn baby, these types of justifications are irrelevant if the policy is unlawful.

    3.   Disparate Impact

In the context of employment, when a neutral policy or practice, regardless of intent, has a disparate impact on individuals who are pregnant or perceived to be pregnant, the policy or practice violates the NYCHRL.

    4.   Retaliation

An employer may not retaliate against an individual because he/she (1) opposes a discriminatory practice prohibited by the NYCHRL; (2) makes a charge or files a complaint with the Commission, the employer or any other agency; or (3) testifies, assists, or participates in an investigation, proceeding, or hearing related to an unlawful practice under the NYCHRL.

For example, an employer may not retaliate against an employee who requests a reasonable accommodation as a result of their pregnancy.

   5.   Notice

The NYCHRL requires employers provide all employees with written notice of their right to be free from discrimination in relation to pregnancy, childbirth, and related medical condition.   Compliance is achieved by providing notice to all new employees at the commencement of employment.  Employers may also post the notice in their place of business in an area, such as a breakroom, that is accessible to all employees.  Failure to comply with the notice requirement violates the NYCHRL.

Tips for Employers

Employers should provide a written policy to employees on the cooperative dialogue process as it relates to pregnancy, childbirth or related medical condition. The policy should explain how an employee requests a reasonable accommodation and explain how the company will engage in this process.

Additionally, once an employee notifies the employer about the pregnancy, the employer should again provide the employee with a copy of the policy and remind her of the availability of accommodations, should they be needed.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.