New Law Prohibits Discrimination Based on Reproductive Health Decision Making

Pursuant to New York State’s recently adopted Labor Law Section 203-E, effective January 7, 2020, employers are prohibited from discriminating against an employee based on an employee’s or a dependent’s reproductive health decision making.

This new law prohibits an employer from accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making, including but not limited to, the decision to use or access a particular drug, device or medical service without the employee’s prior informed affirmative written consent.

Accordingly, an employer shall not: (i) discriminate nor take 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, including, but not limited to, a decision to use or access a particular drug, device or medical service; or (ii) require an employee to sign a waiver or other document which purports to deny an employee the right to make their own reproductive health care decisions, including use of a particular drug, device, or medical service.

An employee may bring a civil action for alleged violations, where the court may (i) award damages, including, but not limited to, back pay, benefits and reasonable attorneys’ fees and costs incurred to a prevailing plaintiff;  (ii) afford injunctive relief against any employer that commits or proposes to commit a violation of the provisions of this law; (iii) order reinstatement; and/or (iv) award liquidated damages unless an employer proves a good faith basis to believe that its actions in violation of section 203-E were in compliance with the law.

This law does not limit any rights of an employee provided through any other provision of law, common law or collective bargaining unit.

For the purposes of this law, retaliation or retaliatory personnel action shall mean discharging, suspending, demoting, or otherwise penalizing an employee for:

  • making or threatening to make, a complaint to an employer, co-worker, or to a public body, that rights guaranteed under section 203-E Labor Law have been violated;
  • causing to be instituted any proceeding under or related to section 203-E; or
  • providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such violation of a law, rule, or regulation by such employer.

By January 7, 2020, all employers who provide employee handbooks to their employees must give notice to their employees of their rights and remedies under Section 203-E of the New York State Labor Law. For further information on this new law or guidance on revising your policies and procedures, please contact David Paseltiner.