Seyfarth Synopsis: The New York State Labor Law has been amended to prohibit employment discrimination “based on an employee’s or a dependent’s reproductive health decision making.” The law not only prohibits discrimination and retaliation on this basis, but provides extensive penalties for violations of the law. It also requires that an employer’s handbook include a notice of employees rights and remedies under the law.

On November 8, 2019, Governor Cuomo signed a bill prohibiting employment discrimination “based on an employee’s or a dependent’s reproductive health decision making.” While the New York City Human Rights Law added “sexual and other reproductive health decisions” to the list of protected categories under the New York City Human Rights Law in May of this year (prior guidance located here), the new State law goes further.

Prohibitions Under the Law

The law adds a new Section 203-e to the New York State labor law, which goes into effect immediately. The law provides that “reproductive health decision making” includes, but is not limited to, “the decision to use or access a particular drug, device or medical service.”

Under the law, employers are prohibited from:

  1. Accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making without the employee’s prior informed affirmative written consent;
  2. Discriminating against or taking 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; or
  3. Requiring an employee “to sign a waiver or other document” that denies the employee the “right to make their own reproductive health care decisions.”

The law also defines “retaliation or a retaliatory personnel action,” which means “discharging, suspending, demoting, or otherwise penalizing an employee for: (a) making or threatening to make, a complaint to an employer, co-worker, or public body, that rights under the section have been violated; (b) causing to be instituted any proceeding under or related to this section; or (c) providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into a violation of a law, rule or regulation.”

Private Right of Action

The law allows an employee to bring a civil action against an employer for alleged violations in any court of competent jurisdiction. The law enables the court to award remedies, which include: damages -- including but not limited to, back pay, benefits and reasonable attorneys’ fees and costs, as well as injunctive relief, reinstatement, or liquidated damages equal to one hundred percent of the award for damages unless an employer proves a good faith basis for its belief that its actions were in compliance with the law. It also provides for a separate award of civil penalties against an employer for retaliation.

Handbook Requirement

Interestingly, the law requires employers who have a handbook to include in it a “notice of employee rights and remedies under this section.” While the Department of Labor has not yet issued any guidance as to the requisite notice, given that all employers in New York State are required to have an anti-sexual harassment policy, this effectively means all employers will need to amend their handbooks to comply with the law.

Employer Takeaways

Further guidance by the Department of Labor is expected. In the meantime, employers should ensure that their handbooks and other policies are updated accordingly. Employers may want to consider adding this protected characteristic to any existing training materials as well.