New York State Bans Discrimination Based on Reproductive Health Decisions

 

By Emma J. (Fursland) Diamond and Devjani H. Mishra © Littler November 19, 2019
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New York State Bans Discrimination Based on Reproductive Health Decisions

As of Nov. 8, New York State prohibits employment discrimination based on an employee's or a dependent's "reproductive health decision-making." The New York State Legislature passed the bill in January, and Gov. Andrew Cuomo signed it into law this month. 

This move comes less than one year after the New York City Council added "sexual and other reproductive health decisions" to the list of protected categories under the New York City Human Rights Law. This statewide measure is likely a response to the federal government's efforts to increasingly regulate this area. 

What Does the New Law Cover?

The law, which adds a new Section 203-e to the New York State Labor Law, is focused on "reproductive health decision making," defined as "including, but not limited to, the decision to use or access a particular drug, device or medical service." The law prohibits an employer from:

  • Accessing an employee's personal information regarding the employee's (or the employee's dependent's) reproductive health decisions, without the employee's prior informed affirmative written consent.
  • Discriminating or taking any retaliatory personnel action against an employee with respect to compensation, terms, conditions or privileges of employment because of or based on the employee's (or the employee's dependent's) reproductive health decisions.
  • Requiring an employee to sign a waiver or other document that purports to deny employees the right to make their own reproductive health care decisions.

Consequences for Violating the Law

The law permits an employee to bring a civil action in any court of competent jurisdiction. Remedies available for violations of this law exceed those normally available in other discrimination cases. Those remedies include but are not limited to back pay, benefits, and reasonable attorney fees and costs, as well as injunctive relief and reinstatement against any employer that "commits or proposes to commit" a violation of this law. 

Additionally, a court may award liquidated damages "equal to one-hundred percent of the award for damages … unless the employer proves a good-faith basis to believe that its actions … were in compliance with the law."

Separately, the law provides for an additional award of civil penalties against any employer that retaliates against an employee for bringing a complaint under the law. Retaliation is defined as "discharging, suspending, demoting or otherwise penalizing" an employee for "making or threatening to make a complaint to an employer, a co-worker, or to a public body" or for "instituting a proceeding … providing information to or testifying before any public body conducting an investigation, hearing or inquiry into any such violation."

Next Steps for Employers

Employers with employees in New York should be aware that this new law takes effect immediately. Unusually, the law requires that those employers that provide employee handbooks must include notice of employees' rights and remedies under this law in such handbooks. The state has yet to provide guidance regarding the form of such notice, but it is reasonable to assume that it would include amending any list of protected classes, affirming the privacy of medical records and stating that retaliation is prohibited. Separately, employers should ensure that human resources staff, managers and supervisors are trained regarding this new law and take steps to separate any information relating to any employee's reproductive health choices from employment-related decisions.

Emma J. (Fursland) Diamond and Devjani H. Mishra are attorneys with Littler in New York City. © 2019 Littler. All rights reserved. Reposted with permission. 

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