New Law Prohibits Employers from Discriminating Based on an Employee’s Reproductive Health Decision Making

The New York Labor Law now bans discrimination based on an employee’s “reproductive health decision making.”  You may recall that in May of 2019, New York City prohibited employment discrimination on the basis of an employee’s “sexual and reproductive health decisions.”  The new state law goes even further to extend the protected class status statewide and also adds additional requirements described below.

New Prohibitions
Effective November 8, 2019, the New York Labor Law added Section 203-e, which prohibits discrimination based on “reproductive health decision making.”  It defines “reproductive health decision making” to include “the decision to use or access a particular drug, device or medical service.”  The law prohibits employers from:

  1. Accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making without the employee’s prior informed affirmative written consent;
  2. Discriminating or taking any retaliatory personnel action against an employee with respect to “compensation, terms, conditions, or privileges of employment” because of or on the basis of the employee’s or dependent’s reproductive health decision making; or
  3. Requiring an employee to sign a waiver or other document that denies an employee the right to make their own reproductive health care decisions.

“Retaliation or a retaliatory personnel action,” is defined as “discharging, suspending, demoting, or otherwise penalizing an employee for:

(a) making or threatening to make a complaint to an employer, co-worker, or public body, that their rights under the section have been violated;

(b) instituting any proceeding under or related to this section;

(c) providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into a violation of a law, rule, or regulation.”

Private Right of Action
The new law allows employees aggrieved under this section to bring a civil action in any court of competent jurisdiction.  It also allows the court to provide the following remedies: injunctive relief, reinstatement, or damages, including, but not limited to, back pay, benefits, reasonable attorneys’ fees, and costs incurred to a prevailing plaintiff.  The court may also award liquidated damages equal to one hundred percent of the award for damages unless an employer proves a good faith basis to believe that its actions were in compliance with the law.  The law allows a separate award of civil penalties against an employer who retaliates under this section. 

Employee Handbook Changes
The law also requires employers to amend their employee handbooks to notify employees of their rights and remedies under this new anti-discrimination law.  Because New York State requires all employers to have an anti-sexual harassment policy, this new law effectively requires all employers to amend their handbooks to provide the additional notices.

Action Items
Employers must ensure that their handbooks and other policies are updated in accordance with the new requirements.  Employers should also be sure to include information on these new requirements in any written or training materials to ensure management and Human Resources personnel are in compliance and well trained regarding the new law. 

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