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By Douglas Lipsky

Employment discrimination based on race, gender, religion, ethnicity, sexual orientation, gender identity and other protected characteristics is prohibited by the New York State Human Rights Law — the state’s primary employment discrimination law. Workplace discrimination is also barred by the New York Labor Law, however, which has recently been amended to include discrimination on the basis of “reproductive health decision making.” 

If you believe you have been subjected to any form of discrimination in the workplace, you should consult an experienced employment lawyer.

How Has the New York Labor Law Been Amended for Reproductive Health Decision Making?

The amendment, which took effect on November 8, 2019, prohibits employers from discriminating on the basis of employees’ (or dependents’) reproductive health decision making, including their decision to use or access a particular drug, device or medical service.

In particular, employers are barred from: 

  • Accessing personal information regarding an employee’s (or dependent’s) reproductive health decision making without written consent
  • Requiring employees to sign a document waiving their right to make their own reproductive health care decisions
  • Discriminating or retaliating against employees based on their reproductive health choices

An example of this includes an employer firing an employee for using in vitro fertilization to get pregnant. If your employer discriminates against you on the basis of your reproductive health decision making, a skilled employment law attorney can help enforce your rights and seek just compensation.

Mandatory Notice Requirement

The new law includes a mandatory notice requirement. As of January 7, 2020, employers are required to notify employees that discrimination based on their reproductive decision making is a violation of state law and company policy. Although the Department of Labor has yet to issue a model form of disclosure, employers should revise their employee handbooks to comply with the notification requirement.

Penalties for Discriminating on the Basis of Reproductive Health Decision Making

It is worth noting that employees alleging discrimination based on reproductive health decision making are not required to file an administrative complaint before filing a lawsuit in court. In a successful claim, the court may award damages such as reinstatement, back pay, and attorney’s fees. In addition, liquidated damages may be available if the employer’s action was not based on good faith. 

Why This Matters

The amended New York Labor Law is designed to protect an employee’s right to make reproductive health decisions, a right that is generally protected by state and federal law. However, some employers have invoked “religious freedom” arguments to justify making employment decisions that intrude on employees’ rights in this regard. 

While it is unclear if the new law will face legal challenges, it is crucial for employees and employers to understand their rights and responsibilities. In sum, a skilled employment lawyer can help businesses ensure their policies and procedures adhere to the new law, while also working to protect the rights of aggrieved employees.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.