Employer Alert: New York State Bans Discrimination Based on Reproductive Health Decisions

On November 8, 2019, New York Governor Andrew Cuomo signed into law a bill meant to protect employees' reproductive health rights. Under the law, which became effective immediately, all New York employers are prohibited from discriminating against an employee based on the employee's reproductive health decisions.  New York City employers should be aware that this law's requirements are in addition to New York City's similar reproductive health discrimination law that went into effect in May 2019.

The law adds a new Section 203-e to the New York State Labor Law and is focused on "reproductive health decision making," which includes, but is 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 in regard to compensation, terms, conditions, or privileges of employment due to the employee's (or the employee's dependent's) reproductive health decisions; and
  • requiring an employee to sign any document that could deny the employee's right to make reproductive health care decisions.

An employee may file a civil action in any court of competent jurisdiction for alleged violations of the law. The remedies available for violations of the law exceed those typically available in other discrimination cases and include, but are not limited to, back pay, benefits, reasonable attorneys' fees and costs, injunctive relief, and reinstatement. Employees may also be entitled to an award of liquidated damages "unless the employer proves it had a good-faith basis to believe that its actions . . . were in compliance with the law."

The law separately provides for an additional award of civil penalties against any employer that retaliates against an employee for bringing a complaint. "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."

Employers can take several steps now to comply with the law.

First, because the law requires employee handbooks to include a notice of employees' rights and remedies under this law, employers should revise their handbooks accordingly.

Second, employers should train human resources personnel, supervisors, and managers on any changes made to the employer's policies and practices pursuant to the law.

Third, employers should ensure that they separate any information relating to employees' reproductive health decisions from employment-related decisions.

To ensure that your organization is in compliance with the law, please contact Laura L. Spring, Esq. at CCBLaw.