Having a baby should be cause for celebration – not discrimination. Federal, state and local laws prohibit employers from discriminating against employees based on pregnancy. Unfortunately, pregnancy discrimination is still alive and well in New York. If you think you have been discriminated against due to your pregnancy, you should contact an experienced New York pregnancy discrimination attorney.

The Law Offices of Yuriy Moshes represents victims of employment discrimination in the greater New York City area including all of the boroughs of New York City (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, upstate New York, and Long Island.

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What is Pregnancy Discrimination?

Pregnancy discrimination is a form of illegal gender-based discrimination. It occurs when an employer treats an applicant or employee differently based on her pregnancy, childbirth, or pregnancy-related conditions.

Pregnancy discrimination can happen at any point in the employment relationship, from hiring to firing. It is illegal to refuse to hire someone because she is pregnant; to make assignments, promotions, or demotions based on pregnancy; to fire someone because she is pregnant; or to harass someone because they are pregnant. If you think you have been discriminated against due to your pregnancy, you should contact an experienced New York pregnancy discrimination lawyer.

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What Laws Prohibit Pregnancy Discrimination in the Workplace?

The federal law which prohibits pregnancy discrimination in employment is Title VII of the Civil Rights Act of 1964 (“Title VII”), which includes the Pregnancy Discrimination Act of 1978 (“PDA”). Further, the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) also forbid any form of pregnancy discrimination in the workplace.

What are the Different Types of Pregnancy Discrimination?

Pregnancy discrimination cases can include all the following:

    • Harassing an Employee for Being Pregnant. This is one of the most common forms of workplace discrimination against pregnant employees. Frequent and pervasive conduct—such as unwelcome and offensive jokes, insults, physical assaults and threats, and intimidation—that interferes with a pregnant or new mother’s work performance and creates a hostile working environment is considered unlawful discrimination. This harassment can be carried out by a supervisor, co-worker, business partner, or even by clients or customers.
    • Refusing to Hire Someone Because She is Pregnant. If a job applicant is pregnant or intends to become pregnant in the near future, a company cannot refuse to hire her for those reasons. Many companies attempt to justify this by saying that they only want to hire someone who will be able to continue to work without any interruption. The employer may want to avoid what it assumes will be a negative economic impact or disruption of work in the workplace but that is illegal. An employer can’t make an assumption based on bias or stereotypes about how that employee will act during her pregnancy or following childbirth. If you believe that you have been denied a job on the basis of your pregnancy, you should contact a NYC pregnancy discrimination lawyer.
    • Failure to Provide a Reasonable Accommodation for Pregnant Employees. In New York, the NYSHRL and the NYCHRL both require that employers provide reasonable accommodations to employees who are pregnant and/or suffer from pregnancy-related complications, such as severe morning sickness or doctor-ordered bed rest. An accommodation is an adjustment to the workplace that allows a pregnant employee or an employee suffering from pregnancy-related conditions to perform her essential job duties. Whether an accommodation is reasonable, however, depends on the degree to which an accommodation would disrupt the employer’s operation or result in unreasonable cost to the employer. However, just being pregnant is not enough to trigger the duty of the employer to make accommodations. If an employee needs an accommodation to be able to perform her essential job duties, it is the employee’s duty to request a reasonable accommodation. The employer has the right to request medical certification to better understand and justify the need for an accommodation.
    • Discriminating Against an Employee for Pumping Breast Milk. Under the Affordable Care Act, employers are required to provide a reasonable break time for an employee to pump breast milk for her nursing child for up to 1 year. Employers are also required to provide a private place that is shielded from view, other than a bathroom, for the employee to pump breast milk. However, if a company has less than 50 employees, and it can prove that providing breaks or a private space would create “undue hardship” to the company, it may not be required to offer this arrangement to its employees. Further, although the break does not have to be paid, where employers already provide compensated breaks, an employee who uses that break time to pump milk must be compensated in the same way that other employees are compensated for break time. Under the New York Labor Law, an employer is also required to provide reasonable unpaid break time to allow an employee to pump breast milk for her nursing child for up to 3 years following child birth. The employer must also make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can pump milk in privacy.

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  • Forcing an Employee to Take Time Off or Change Positions. Upon learning that an employee is pregnant, many employers will force the employee to take a leave of absence and claim that they are doing this “for the benefit of the employee” and/or “out of concern” for the employee and their unborn child. They will commonly say things such as, “you need to rest and prepare for the baby. We don’t want you to jeopardize the health of your unborn child.” Some employers will try to reassign the pregnant employee to a less stressful position. Even though the employee never stated that their pregnancy interfered with her ability to perform her job, many employers falsely believe that as long as their intent is good and they are doing what they believe is best for the employee, it does not constitute pregnancy discrimination. This assumption is wrong. If an employee is able to perform the essential functions of her job, any adverse employment action taken against that employee on the basis of her pregnancy will be deemed pregnancy discrimination and is illegal. It is up to the employee and her doctor to decide whether she is able to work. It is not the employer’s decision.
  • Firing a Pregnant Employee Due to Pregnancy. There are many examples of blatant pregnancy discrimination, such as when the worker is fired for being pregnant because the employer does not think she will be able to perform her job while pregnant or after giving birth. However, there are also less flagrant examples. Although an employer may have good intentions, such as being concerned about a pregnant employee’s safety on the job, it is still illegal and deemed discrimination to fire a pregnant employee due to concerns for her health. For example, even if a job necessitates lifting heavy objects or being around toxic chemicals, the safety of the employee and her fetus is ultimately up to her and her physician, not her boss or employer.

If you experience any form of pregnancy discrimination at your job, you should contact a pregnancy discrimination lawyer in New York to learn all of your rights.

What are Some Examples of Pregnancy Discrimination in the Workplace?

    • During an interview, a job placement agency asks an applicant how many children she has and if she is planning to get pregnant again. The applicant says she is four months pregnant. The agency tells her to come back after she has her child and is ready to work.
    • An employer fires a female employee after learning that she is pregnant, even though she is still able to work for several more months.
    • A pregnant worker at a fast food restaurant asks her boss if she can stop lifting heavy boxes during her pregnancy. The boss says no, even though another employee in her same position did not have to lift boxes at work while recovering from surgery.

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  • A pregnant worker needs to take time off to visit her doctor for prenatal care. She is docked and eventually disciplined for missing time from work, even though other workers who need ongoing medical treatment are not docked nor disciplined.
  • Upon hearing that the employee is pregnant, her manager repeatedly makes comments to her direct report about how her pregnancy status is affecting her work in the hope that she will quit or transfer to a different position. This conduct may rise to the level of actionable pregnancy-based harassment.
  • A supervisor of a pregnant worker constantly makes jokes and offensive comments about her pregnancy, affecting the worker’s performance.

Remember, pregnancy discrimination can come in different forms. A NYC pregnancy discrimination attorney can help you determine if your rights were violated and advise on the best course of action to take.

What is the Law that Governs Maternity Leave?

The Family and Medical Leave Act (“FMLA”) guarantees an employee, male or female, who has worked at least 1,250 hours within the last year for a company with 50 or more employees the right to take 12 weeks of unpaid, job-protected leave to recover from a serious medical condition — including pregnancy — or to care for a newborn, a newly adopted child, or a seriously ill child, parent or spouse.

Under the FMLA, you have the right to take this 12-week unpaid leave every year, and to have your health benefits maintained during your leave. The FMLA also guarantees that at the end of the leave you will be given the same job you left or another job equivalent in pay, benefits and other terms and conditions.

If your employer is refusing to provide you with maternity leave guaranteed by the FMLA, you should contact a pregnancy discrimination lawyer in NYC right away. Experienced New York pregnancy discrimination lawyers at the Law Office of Yuriy Moshes will advise you on your current situation and recommend the best course of action to take.

What Should I do if Treated Unfairly at Work Due to my Pregnancy?

If you believe you have faced pregnancy discrimination at work, talk to an experienced pregnancy discrimination attorney right away. If you are still employed, there may be steps you can take to save your job. A quick letter from an attorney might make your employer think twice about taking action against you.

If you have lost your job, an attorney can help you assess the strength of your claims and decide how best to move forward, whether by trying to negotiate a severance package or pursuing legal action.

Remember, it is against the law for employers to demote, fire, harass, or otherwise “retaliate” against an employee for complaining of pregnancy discrimination. If you are concerned about possible retaliation, you should seek a legal support from a NYC pregnancy discrimination attorney. Often employers will take advantage of a pregnant employee, force her not to file a claim, and accept an unlawful termination. Don’t let that happen to you. Know your rights.

How do I Prove Pregnancy Discrimination?

To win a pregnancy discrimination case, you must show that you were treated differently than your non-pregnant similarly-situated coworkers, and that the difference in treatment was based solely on your pregnancy. In order to understand how to prove pregnancy discrimination, you must first understand the two main types of evidence that are needed.

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Direct Evidence of Discrimination: Sometimes, an employee has direct evidence of discrimination. Essentially, this means that the employer admitted to acting with discriminatory intent. Direct evidence is a “smoking gun,” such as an e-mail an employee was accidentally cc’d on that contains derogatory comments about a pregnant employee, a letter from an employer explaining that a pregnant employee was fired due to her pregnancy, or even a recording of an employer telling an employee, “I’d like to give you the job, but I know you won’t want to travel as much once you have your baby.” While this kind of evidence is rare, it will conclusively prove discrimination.

Circumstantial Evidence of Discrimination: In the absence of direct evidence, discrimination may be proven with circumstantial evidence, which is evidence that relies on an inference to connect it to discrimination. To prove discrimination by circumstantial evidence, the facts of your case, taken together, must make it more likely than not that discrimination motivated your employer’s action. Examples of circumstantial evidence would be:

  • Close temporal proximity between the time the employer learned of the employee’s pregnancy and the time of the adverse employment action;
  • Evidence that similarly situated employees who are not pregnant are treated differently and disparately;
  • Evidence that a pregnant employee was qualified for a position, but was replaced by or passed over for the position in favor of someone who was less qualified but also not pregnant.

Consult with a NYC pregnancy discrimination lawyer to learn whether you have sufficient evidence to establish a pregnancy discrimination case.

Law office of Yuriy Moshes

The Law Offices of Yuriy Moshes represents victims of employment discrimination in the greater New York City area including all of the boroughs of New York City (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, upstate New York, and Long Island.

Important: To preserve your right to sue under Title VII, you must first file a charge of discrimination with the EEOC or a similar state agency. There are strict deadlines, both for filing a charge and for filing a lawsuit afterwards. An experienced pregnancy discrimination attorney of the Law Office of Yuriy Moshes can help you take all of the necessary steps to enforce your rights.

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