An amendment to the Administrative Code of the City of New York (Int. 0863-2018) was approved on December 20, 2018, by the New York City Council, prohibiting employment discrimination and harassment based on an individual’s reproductive health choices. The rule was adopted on January 20, after Mayor Bill DeBlasio neither signed nor vetoed the proposed amendment within 30 days of receiving it. The amendment will go into effect on May 20, 2019.
The new amendment adds “reproductive health decisions” to the New York City Human Rights Law’s list of protected classifications. Under this amendment, “reproductive health decisions” are defined as “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Such services include, but are not limited to, fertility-related medical procedures, sexually transmitted disease prevention, testing, and treatment, and family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion.”
For most clients, this amendment in practice merely spells out obligations already provided under gender, pregnancy, and disability discrimination laws. ERISA continues to preempt the City Law – the legislature noted that this amendment does not require employers to provide reproductive health benefits. Rather, employers are prohibited from taking adverse action against employees because of their decision to obtain birth control, undergo treatment or testing for STDs, take fertility treatments, or get an abortion. Similarly, employers must have anti-harassment policies prohibiting harassment on the basis of such decisions. Employers are also prohibited against retaliating against employees for asserting their rights under the amended law. We recommend that human resources, supervisors, and managers be informed of the law and that employers review their antidiscrimination policies to specify that employment decisions will not be made based on an employee’s reproductive health decisions.
If you would like assistance in reviewing your current antidiscrimination and/or harassment policies, have any questions, or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Kimberley E. Lunetta
Douglas T. Schwarz