How New York City May Protect Paternity Leave Where Federal Law Falls Short

New York City’s employment discrimination laws cover a wider range of protected categories than most similar laws around the country. The New York City Human Rights Law (NYCHRL) covers some gaps left in federal law, which protects against discrimination on the basis of a relatively small list of factors. A decision by a Manhattan federal judge in late 2020, for example, dismissed pregnancy discrimination claims under federal, state, and city law by a father who lost his job after taking paternity leave. It essentially held that he could not bring a claim for pregnancy discrimination because he was never pregnant. The court’s decision does not mention the NYCHRL’s provisions regarding caregiver discrimination, which could cover a father of a newborn.

The Pregnancy Discrimination Act of 1978 amended Title VII of the Civil Rights Act to include pregnancy discrimination in the definition of sex discrimination. See 42 U.S.C. § 2000e(k). In addition to pregnancy itself, Title VII prohibits discrimination due to childbirth and medical conditions related to either pregnancy or childbirth. The NYCHRL goes a step further and requires employers to make reasonable accommodations for pregnant and nursing employees.

Federal law acknowledges the role of fathers or any parent who did not gestate and give birth to a child, in the Family and Medical Leave Act (FMLA). This law requires covered employers to provide unpaid leave to qualifying employees for certain reasons, including caring for a newborn child. The U.S. Supreme Court noted that the statute addresses “mutually reinforcing stereotypes [that] created a self-fulfilling cycle of discrimination” on the basis of sex. Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736 (2003). Employers must provide leave regardless of gender, ensuring “that employers could not evade leave obligations simply by hiring men.” Id. at 737. The FMLA does not, however, address discrimination outside of the context of unpaid family leave.

The NYCHRL prohibits discrimination against caregivers, defined in part as “a person who provides direct and ongoing care for a minor child.” N.Y.C. Admin. Code §§ 8-102, 8-107(1)(a). The New York State Human Rights Law (NYSHRL) prohibits discrimination based on “familial status.” N.Y. Exec. L. § 296(1)(a). It defines the term to include both individuals who are pregnant and those who “ha[ve] a child or [are] in the process of securing legal custody of” a child. Id. at § 292(26)(a). Either law arguably protects a parent who has custody of a newborn or very young child, but who did not give birth to them. A bill introduced in Congress in 2020 would have added similar provisions to federal law, but it never received a committee hearing.

The plaintiff in the New York City pregnancy discrimination lawsuit mentioned above alleged that his employer fired him after he took paternity leave. He claimed pregnancy discrimination under Title VII, the NYCHRL, and the NYSHRL. The court dismissed his federal and city law claims, finding that he had failed to establish that he was part of a protected class since he was not, and could not be, pregnant. It declined to retain jurisdiction over the state law claims. The court never used the word “caregiver,” so it seems that the plaintiff did not assert that cause of action.

The employment attorneys at Phillips & Associates represent New York City employees and job applicants who have experienced pregnancy discrimination, caregiver discrimination, and other unlawful workplace practices. To schedule a free and confidential consultation to see how we can help you, please contact us today online or at (866) 229-9441.

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