Starting January 30, 2014, employers doing business in New York City will have to comply with new legislation with respect to pregnant workers. The Pregnant Women’s Fairness Act, Local Law No. 78, which was signed into law by New York City Mayor, Michael Bloomberg, on October 2, 2013, takes effect on January 30, 2014. The law applies to any employer with four our more employees and includes independent contractors as persons in the employ of the employer.


The law amends the New York City Administrative Code § 8-101, et seq. to make it an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation to women based on pregnancy, childbirth, or a related medical condition, which will allow her to perform the essential requisites of her job, provided that it does not constitute an undue hardship to the employer's business. 


The employer has the burden of proving undue hardship.  Factors to be considered in determining whether there has been undue hardship include: a) the nature and cost of the accommodation; b) the overall financial resources of the facility or the facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; c) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and d) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.


The employee's pregnancy, childbirth or related medical condition must be one which is known or should have been known by the employer.  The law specifically provides that it is an affirmative defense, if the person aggrieved by the alleged discriminatory practice could not with reasonable accommodation satisfy the essential requisites of the job.


The law also requires employers to provide written notice (in a form and manner to be determined by the commission) to new employees and existing employees of their right to be free from discrimination in relation to pregnancy, childbirth and related medical conditions.  Such notice may also be conspicuously posted at an employer's place of business in an area accessible to employees.  

  
A woman who believes that she has been subjected to unlawful discrimination on the basis of pregnancy, childbirth, or a related medical condition may bring an action in court for damages, injunctive relief and other appropriate remedies, or may file complaint to the New York City Commission on Human Rights.  N.Y.C. Admin. Code §8-109.  


The legislation, which was co-sponsored by Council Member, Jimmy Vacca, and Councilwoman, Debbie Rose, Chair of the New York City Council Civil Rights Committee, was introduced to remedy gaps in existing laws with respect to pregnancy discrimination, such as the Federal Pregnancy in Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions as a form of sex discrimination. The Federal Pregnancy in Discrimination Act only applies to employers with 15 or more employees.  Under the Federal Pregnancy in Discrimination Act, if an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee.  However, the Federal Pregnancy in Discrimination Act falls short in the case where a woman is pregnant and requires accommodation, but is not necessarily “disabled.”  The New York City Pregnant Women’s Fairness Act requires employers to accommodate pregnant women regardless of whether or not they are legally “disabled,” and specifically states that a reasonable accommodation may include things 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, among other things.” Local Law No. 78.
 

Similar legislation has been introduced at the state level to amend New York State’s Human Rights Law, N.Y. Exec. 
Law §290 et seq., to require employers to accommodate pregnant workers absent undue hardship by the employer.
See, New York Assembly bill A01264 and Senate bill S01479.  
 

A similar bill (S2995, A4486) was recently signed into law in New Jersey by Governor Chris Christie on January 21, 
2014.  The new law, which amends §10:5-12 of the New Jersey Law Against Discrimination (“LAD”) 10:5-1 
et seq.,to prohibit discrimination against pregnant workers and require employers to provide reasonable 
accommodations to pregnant workers unless the employer can demonstrate undue hardship, is effective
immediately.