§ 2-09 Prohibition on Discrimination Based on Pregnancy, Childbirth, and Related Medical Conditions, and Requirement for Employers to Accommodate Lactation Needs.
RCNY § 2-09
(a)Disparate Treatment Based on Pregnancy, Childbirth, or Related Medical Conditions. It is a violation of § 8-107 of the Administrative Code for any covered entity to treat a person less well based on their actual or perceived pregnancy, childbirth, or related medical condition. Disparate treatment includes adverse treatment of pregnant individuals based on assumptions and stereotypes about the ability, reliability, or professional commitment of pregnant employees. Assumptions about how pregnant individuals should behave, their physical capabilities, and what is or is not healthy for a fetus cannot be used as pretext for unlawful discrimination.
(1)Examples of violations.
(i)An employer refuses to hire someone otherwise qualified for a job because the applicant is pregnant and the employer assumes they will likely miss too much work after childbirth.
(ii)A landlord refuses a housing application from a person based in part on their pregnancy.
(iii)A hospital repeatedly drug tests pregnant people without their consent but does not test nonpregnant patients without their consent.
(iv)An employer makes offensive jokes and comments on the basis of an individual's pregnancy, such as talking about weight gain or stating that pregnancy is making the individual overly sensitive.
(v)A hotel worker refuses to let a pregnant guest use the hotel hot tub.
(vi)A restaurant manager tells a patron to leave the restaurant because the patron is breastfeeding their child and exposing their breast.
(vii)A manager fails to intervene after overhearing several employees call their coworker a "cow" after the coworker uses the office lactation room.
(viii)A bouncer refuses to let a pregnant person into a bar because the bouncer believes pregnant people should not go to bars.
(ix)An employer decides not to assign an employee to a new project after learning they are pregnant because the employer is concerned that the worker will be distracted by the pregnancy.
(x)A student at school is bullied for being pregnant. They tell one of their teachers about the bullying, and the teacher does nothing.
(xi)Because of their pregnancy, an employee begins receiving negative performance reviews and fewer work assignments.
(b)Policies that Facially Discriminate Against People Based on Pregnancy, Childbirth, or Related Medical Conditions. A covered entity's policy that targets individuals for disparate treatment based on their actual or perceived pregnancy, childbirth, or related medical condition is unlawful under the NYCHRL. A covered entity cannot use its concerns about maternal or fetal safety as a reason for discrimination.
(c)Facially Neutral Policies or Practices that Have a Disparate Impact on People Based on Pregnancy, Childbirth, or Related Medical Conditions. A covered entity's neutral policy or practice may have a disparate impact on individuals who are pregnant or perceived to be pregnant. An entity may be liable for disparate impact discrimination if it fails to plead and prove that: (1) the policy or practice or a group of policies or practices bears a significant relationship to a significant business objective of the covered entity; or (2) does not contribute to the disparate impact. An entity may also be liable for disparate impact discrimination if there is substantial evidence that an alternative policy or practice with less disparate impact is available to the covered entity and the covered entity fails to prove that such alternative policy or practice would not serve the covered entity as well.
(d)Requirement for Employers to Provide Written Notice About Employees' Right to be Free from Discrimination Based on Pregnancy, Childbirth, or a Related Medical Condition. An employer must provide employees with written notice of their right to be free from discrimination based on pregnancy, childbirth, or related medical condition. The employer may comply with this requirement by: (1) conspicuously posting the notice in its place of business in an area accessible to employees, which may include on a company intranet; or (2) providing the notice to new employees at the start of employment and to all other employees who have not otherwise received notice. Employers may use the notice of rights available on the Commission website to satisfy their obligation to provide notice. The notice should be available to employees at all times during their employment.
(e)Failure to Provide Reasonable Accommodations in Employment Based on Pregnancy, Childbirth, or a Related Medical Condition. It is a violation of the law for an employer to fail to provide a reasonable accommodation for an employee's pregnancy, childbirth, or a related medical condition, if the employer knew or should have known of the employee's pregnancy, childbirth, or related medical condition, and providing the accommodation would not create an undue hardship. Requested accommodations are reasonable unless the employer meets the burden of showing they pose an undue hardship. The employer need not provide the specific accommodation sought by the employee so long as the employer proposes reasonable alternatives that meet the specific needs of the individual or that specifically address the condition at issue. An employee's right to receive a reasonable accommodation based on pregnancy, childbirth, or a related medical condition does not depend on whether the medical condition amounts to a disability under the City Human Rights Law.
(2)An employer's first obligation is to provide a reasonable accommodation to an employee so that they may remain in their current position. When that is not possible because of an undue hardship, an employer may consider whether the employee could be reassigned to a vacant position with equivalent pay, status, and benefits. Only when a comparable position is unavailable, may an employer then explore alternative positions that are not comparable. As a last resort, when no other accommodation can be made, a paid or unpaid leave of absence may be offered as a temporary accommodation. A temporary modification of duties, reassignment to another position, or period of leave that the employer is able to provide as a reasonable accommodation for pregnancy, childbirth, or a related medical condition shall not be treated as evidence that the employee cannot return to performing the essential requisites of their job when their need for a reasonable accommodation has ended. An employer shall not adopt categorical exclusions of comparable positions that pregnant employees are not permitted to fill.
(3)Examples.
(f)Employers Must Engage in a Cooperative Dialogue When They Know or Should Know that an Employee Requires an Accommodation Because of Pregnancy, Childbirth, or a Related Medical Condition, Including Lactation. When an employer knows or should know that an employee needs an accommodation due to pregnancy, childbirth, or a related medical condition, an employer must engage in a cooperative dialogue with the employee. Where an employee has not requested an accommodation, the employer has an affirmative obligation to initiate a cooperative dialogue if the employer: (1) has knowledge that an employee's performance at work has been affected or that 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. The employer should be cautious in initiating the cooperative dialogue in a way to open the conversation and invite the employee to feel comfortable in making a request, such as asking if there is anything going on with the employee, or reminding the employee of the various types of support available, including accommodations. If an employer approaches an employee to initiate a cooperative dialogue and the employee does not reveal that they are pregnant or have a related medical condition in that conversation, the employee does not waive their opportunity to reveal their pregnancy or related medical condition and initiate a cooperative dialogue with their employer at a later time.
(4)An employer must provide employees who need lactation accommodations with a lactation room, as defined in § 8-102 of the Administrative Code, and reasonable time to express breast milk pursuant to §§ 8-107(22)(b) and 8-107(22)(c) of the Administrative Code. If an employer is unable to provide one or more of the required components of a lactation room because of an undue hardship, the employer must engage in a cooperative dialogue with the employee to determine alternative accommodations that meet the employee's needs for each component that cannot be provided. Section 8-107(22) does not excuse employers from their obligation to provide additional reasonable accommodations beyond those explicitly enumerated in the definition of lactation room in § 8-102 and § 8-107(22) of the Administrative Code, as further discussed below in 47 RCNY § 2-09(h)(3).
(5)It is unlawful for an employer to maintain a policy, in writing or in practice, or utilize a system or procedure, that categorically excludes workers in need of accommodations based on pregnancy, childbirth, or related medical conditions from certain types of accommodations. Accommodation requests must be assessed on an individualized basis.
(g)Medical Documentation.
(h)Accommodations Related to Lactation/Expressing Breast Milk. An employer must provide the following for any employee needing an accommodation to express breast milk unless the employer can show that doing so would pose an undue hardship: a lactation room in close proximity to the employee's work area; a refrigerator suitable for breast milk in close proximity to the employee's work area; and access to running water nearby the lactation room.
