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New York City Requires Reasonable Accommodations for Pregnancy

A New York City Human Rights amendment signed into law on October 2, 2013 is set to take effect on January 30th. The new law requires employers with four or more employees to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions. The law seeks to protect a group left vulnerable under a patchwork of City, State, and Federal law. Previously, pregnant employees could not seek accommodations under the Americans with Disabilities Act or the State Human Rights Law because pregnancy unaccompanied by related impairments or complications was not considered a disability.

NYCHRL § 8-102(16)(a) defines disability as any “physical, medical, mental, or psychological impairment, or a history or record of such impairment.” The amendment cements pregnancy as within the definition of disability and provides that it is unlawful to refuse to provide accommodations to pregnant individuals. Additionally, it requires the New York City Commission on Human Rights to create a written notice of employees’ rights and conduct ongoing public education efforts.

In Phillips v. City of New York, an employee requested a one-year leave. The court declined to hold as a matter of law that such a request could not be a reasonable accommodation, especially in the absence of facts showing undue hardship. Phillips v. City of New York, 66 A.D.3d 170, 179 (App Div, 1st Dept 2009). “And unlike the ADA, there are no accommodations that may be ‘unreasonable’ if they do not cause undue hardship.” Id. at 182.

According to the legislative findings and intent published with the amendment, the drafters conceived of more typical pregnancy accommodations as including “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, among other things.”

Employers seeking to avoid liability must prove “undue hardship” or that the employee could not “satisfy the essential requisites of the job” even with accommodation. Factors for undue hardship analysis include (1) the nature and cost, (2) financial resources of the facility, (3) financial resources of the entity, and (4) the type of operation of the entity.

The law is likely to carry weight when it comes to enforcement. While punitive damages for refusal to provide accommodations are available under State Human Rights Law only in housing discrimination cases, the language in the City Human Rights Law is broader and punitive damages are more widely available. Under NYCHRL § 8-502(a), “any person claiming to be aggrieved by an unlawful discriminatory practice as defined in chapter one of this title or by an act of discriminatory harassment or violence” is entitled to damages, including punitive damages.

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