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Did You Know? Reproductive Health Decisions are Protected from Employment Discrimination in New York

Posted by Giovanna A. D'Orazio | Sep 29, 2022

Since November 2019, New York State protects reproductive health decisions from employment discrimination.  The law (Section 203-e of the Labor Law) prohibits “discrimination based on an employee's or a dependent's reproductive health decision making.”  

Specifically, the law states that employers may not:

  • Access an employee's “personal information” regarding their or a 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”;
  • Discriminate or take retaliatory action against an employee for their or a dependent's reproductive health decisions;
  • Require you to sign a waiver or other document denying you your right to make reproductive health decisions;
  • Retaliate against you for exercising your rights under this law, including making complaints of violations of the law.

Employees who are discriminated or retaliated against in violation of the law may bring a civil lawsuit against their employer and recover their lost wages, attorneys' fees and liquidated damages, as well as seek injunctive relief such as reinstatement to their position.

The law had required a policy to this effect to be included in an employee handbook.  This requirement has since been struck down as violating the First Amendment after a challenge by religious institution-employers. The First Amendment theory being that requiring inclusion in an employee handbook is akin to forcing an endorsement of a particular action in contravention of one's religious beliefs, and that employees can be made aware of this law in other ways.  In this context, striking down means that the state is permanently enjoined from enforcing the employee handbook notice requirement (so an employer can't get in trouble for not including it).  But that doesn't mean it can't be included voluntarily, and the case did not impact any other provisions of the law (i.e., the major parts on discrimination and retaliation), which remain in effect. 

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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