New York State Prohibits Discrimination Based on Reproductive Health Decisions

Effective immediately, New York State prohibits employment discrimination based on an employee's or a dependent's "reproductive health decision-making." The New York State Legislature passed the bill in January, 2019 and Governor Andrew Cuomo recently signed it into law. 

The law, which amends the New York State Labor Law by adding a new Section 203-e, defines "reproductive health decision making" as "including, but not limited to, the decision to use or access a particular drug, device or medical service." The law prohibits an employer from:

  • Accessing an employee's personal information regarding the employee's (or the employee's dependent's) reproductive health decisions, without the employee's prior informed affirmative written consent.
  • Discriminating or taking any retaliatory personnel action against an employee with respect to compensation, terms, conditions or privileges of employment because of or based on the employee's (or the employee's dependent's) reproductive health decisions.
  • Requiring an employee to sign a waiver or other document that purports to deny employees the right to make their own reproductive health care decisions.

Notably, the law requires that those employers that provide employee handbooks must include a notice of employees' rights and remedies under this law in such handbooks.  The law allows employees to bring a civil action in court for any violation. If successful in a civil court action, an employee may recover liquidated damages equal to 100 percent of any damages awarded “unless the employer proves a good faith basis to believe that its actions . . . were in compliance with the law.” The new law also provides for civil penalties (the amount of such penalties are unspecified) for retaliation against an employee for bringing a complaint under the law.

As we previously reported, New York City had already added “sexual and reproductive health decisions” to its list of protected categories under the New York City Human Rights Law earlier this year. However, New York State’s law is more expansive in that it adds the notice requirement.

While the State has not yet provided guidance regarding the form of the required notice, the law is in effect and employers should take steps immediately to (1) confirm that their employee handbooks include reproductive health decisions as a protected category and (2) amend their employee handbooks to affirm that medical records will remain private and that retaliation for employee reproductive health decisions is prohibited.