Did your New York employer fire you because you are pregnant? If so, you may have a wrongful termination case. This article explains your rights as a pregnant employee under federal and New York law, as well as what to do if you believe you were wrongfully terminated because of your pregnancy.
Federal and New York laws protect pregnant employees from discrimination. In certain circumstances, they also require employers to give time off and reasonable accommodations to pregnant employees.
The federal Pregnancy Discrimination Act (PDA) prohibits employers with 15 or more employees from discriminating based on pregnancy, childbirth, and related medical conditions. For example, employers may not fire or discipline an employee for getting pregnant, refuse to hire an applicant because she is pregnant, or single out a pregnant employee for worse treatment than employees who are temporarily disabled for other reasons.
The PDA also prohibits employers from relying on stereotypes about pregnant women and new mothers in making job decisions. For example, an employer may not assume that a pregnant employee is too fragile to do her job or that she won't want to come back to work after having the baby.
The New York Human Rights Law also prohibits sex discrimination, which covers discrimination based on pregnancy, childbirth, and related medical conditions. Like the PDA, New York law prohibits discrimination against pregnant applicants and employees. New York’s law, however, covers a broader set of employers: those with four or more employees.
Under the PDA and New York law, a pregnant employee is entitled to the same accommodations her employer provides to employees who are temporarily disabled by other health conditions. For example, it would be discriminatory for your employer to provide light duty or other job modifications to all employees with work restrictions except pregnant employees. (Learn more on the rules for light duty during pregnancy.)
Employers are not, however, required give preferential treatment to pregnant employees. In other words, your employer doesn’t have to create a light-duty position for you if it doesn’t do so for other employees with temporary disabilities.
The federal Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to an employee suffering from a pregnancy-related disability. Normal pregnancies, and the usual physical changes and limitations that come with them, are not considered disabilities under the ADA. However, if you are suffering from a disabling pregnancy-related condition, such as gestational diabetes or preeclampsia, you may have a disability under the ADA. (For more on the ADA, see our Disability Discrimination page.)
While some states require employers to provide reasonable accommodations to all pregnant employees, even those with normal pregnancies, New York does not. However, New York City does have such a law. Employers in the city with four or more employees must reasonably accommodate a pregnant employee’s work restrictions, unless it would cause an undue hardship.
You may also be entitled to take time off work for certain medical reasons relating to pregnancy and childbirth. If your employer has at least 50 employees, it must comply with the federal Family and Medical Leave Act (FMLA), which gives eligible employees the right to take up to 12 weeks of unpaid time off work for medical needs and caretaking responsibilities, including:
Employees must meet certain eligibility requirements to take FMLA leave, including having worked for their employers for at least one year. (For more information on eligibility, see Taking Family and Medical Leave.)
Under the FMLA, you also have the right to continue your health insurance benefits while you’re off work and to be reinstated to your former position when your leave is over.
New York does not provide any additional rights to pregnancy leave. However, New York law does specifically prohibit employers from forcing pregnant employees to take a leave of absence if they are able to perform their job duties.
New York is one of the few states that allows pregnant employees to receive partial wages during their time off work. Under New York's temporary disability program, a pregnant employee can collect weekly benefits during the time that she is unable to work due to pregnancy. Benefits are not available for parental leave, though. For more details on this program, see New York Short-Term Disability Benefits.
You may have a claim against your employer for wrongful termination if you were fired because of your pregnancy, because you couldn't perform your job duties and were denied an accommodation, or because you requested or used leave under the FMLA.
If you believe your employer violated federal discrimination laws, such as the PDA or the ADA, you’ll need to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces workplace discrimination laws. You also have the option of filing state discrimination claims with the New York Division of Human Rights (NYDHR). Depending on your claims, you have either 300 days or one year to file your charge.
You may not file a lawsuit based on federal claims until you have taken your claims to the EEOC. The same is not true of the NYDHR however: You do not have to file with the state agency before bringing a lawsuit. You can either file a charge with the NYDHR or file a lawsuit, but not both. Either agency may investigate your claims, try to settle the case with your employer, or propose mediation. (See Filing an EEOC Charge of Discrimination to learn more.)
If you want to file a lawsuit right away, you can ask the EEOC to issue you a right-to-sue letter: a document that confirms that you have met your obligation to file a charge and that you may now to take your case to court. But be ready to act quickly: Once the letter is issued, you will have only 90 days to file a lawsuit. If you want to file a lawsuit under New York law, you must file within three years of the alleged discriminatory actions.
If you claim that your employer violated the FMLA, you can go straight to court without filing anything with a government agency.
If you win your lawsuit, you can ask the court to order your employer to give you your job back. However, this remedy, called reinstatement, isn’t very common. Often, there’s just too much hostility between the former employee and employer to make this work. Also, reinstatement might require displacing the person the employer hired to replace the employee, which courts generally don’t like to do.
It's more common to ask for money damages to compensate you for the harm done by your employer’s actions. Depending on the facts of your case, these damages might include:
While federal law does not place a cap on lost wages, it does impose caps on how much you can be awarded for pain and suffering, out-of-pocket losses (such as the costs of looking for a new job), and punitive damages. Depending on the size of your employer, the maximum combined award for these types of damages ranges from $50,000 to $300,000.
The New York Human Rights Law does not allow punitive damages awards. However, there is no cap on how much a court or jury can award in damages for emotional distress and mental suffering.
If you are considering filing an EEOC or NYDHR charge or a lawsuit against your employer, you should talk to an experienced employment lawyer. A lawyer can help you determine whether you have a strong case, what your claims might be worth, and how best to assert your rights. A lawyer can try to settle the case with your employer, attend interviews and mediation sessions, and—of course—represent you in court.
Especially if you are still out of work, you may be concerned about the cost of hiring a lawyer. In discrimination cases, however, lawyers generally charge on a contingency basis, which means the lawyer collects fees only if you win your case. And, because laws prohibiting discrimination allow you to collect attorneys' fees and costs, much less will be taken out of your award for these expenses.
Learn more about hiring a lawyer in a discrimination case, including how lawyers charge and how lawyers decide whether to take a case, at our Asserting your Rights Against Discrimination page. To find a local employment lawyer, check out Nolo’s Lawyer Directory.