State Bans Discrimination Based on Reproductive Health Decisions
On November 8, 2019, Governor Cuomo signed into law a new Section 203-e of the New York State Labor Law that bans employment discrimination based on the “reproductive health decision-making” of an employee or that of an employee’s dependents. The law became effective immediately and adds another characteristic to the ever-expanding list of “classes” protected from employment discrimination. The new law can be found here https://legislation.nysenate.gov/pdf/bills/2019/S660
What Does It Mean?
First, this new law is broad. It defines “reproductive health decision-making” as “including but not limited to, the decision to use or access a particular drug, device, or medical service.”
Second, under this law, employers are prohibited from:
- Accessing an employee’s personal information regarding the employee’s reproductive health decisions or those of t employee’s dependents, without the employee’s prior informed affirmative written consent;
- Discriminating or taking any retaliatory action against an employee based on the employee’s reproductive health decisions or those of the employee’s dependents; and
- Requiring an employee to sign a waiver or other document which purports to deny the employee the right to make his or her own reproductive health care decisions.
Employees will be able to bring a private law suit against the employer for any violation. Available remedies include, but are not limited to, back pay, benefits, reasonable attorneys’ fees and costs, reinstatement, and injunctive relief. If the employer cannot prove a good-faith basis for its conduct, the employer can be liable for additional liquidated damages – on top of actual damages – of up to 100 percent of the damages awarded (also known as “double damages”).
The law also subjects employers to a separate civil penalty in an unspecified amount for any retaliation against an employee for exercising his or her rights under the law. Retaliation is defined by the statute as discharging, suspending, demoting or otherwise penalizing an employee for (1) making or threatening to make a complaint to an employer, co-worker or a public body; (2) instituting a proceeding under, or related to, the law; or (3) providing information to, or testifying before, any public body conducting an investigation, hearing or inquiry into any violation of the law.
This new law makes it mandatory that employers with employee handbooks “include in their handbook a notice of employees’ rights and remedies under this law.” Thus, failing to update your handbook may subject you to lawsuits for technical violations of the statute. The State has not yet issued any guidance about the form of the notice that is required, nor is it known at this time if the State will do so.
What to Do
Employers should take immediate steps to comply with the notice requirements, including updating their handbooks by (1) adding reproductive health decision making as a protected class, including a statement affirming the privacy of medical records and, specifically, matters related to reproductive health; (2) stating that retaliation is prohibited; and (3) listing the rights and remedies available to employees under the law. Employers should also ensure that appropriate staff and administrators are trained about the new law and take appropriate steps to maintain the confidentiality of employees’ reproductive health decisions and those of employees’ dependents.
Our team of employment attorneys can assist you with more information on this new law, help update your handbook as required, and answer any other questions about New York or federal employment law that you may have. Call or reach out to Matt Miller at firstname.lastname@example.org.