Legislative Memo: In Support of Prohibiting Employer Discrimination Based on Reproductive Health Care Decisions

June 4, 2015

A.1142A (Jaffee) / S.2709A (Krueger)

Position: SUPPORT

Choosing whether, when, and how to have children is a decision for individuals and families, not their employers – and no worker should ever have to worry about being demoted or fired just because their employer disagrees with their personal reproductive health care choices.

A.1142A/S.2709A would amend the New York State Labor Law to prohibit adverse action taken by employers on the basis of reproductive health care decisions made by employees or their family members – namely, using medical services to become pregnant, to prevent pregnancy, or to terminate a pregnancy. The NYCLU supports passage of this bill.

The Affordable Care Act (ACA) established the requirement that health plans include coverage for contraceptive care. Since enactment of the ACA, over one hundred lawsuits have been filed nationwide by employers determined to deny workers that coverage because of their own personal or religious beliefs.¹  The best known of these, Burwell v. Hobby Lobby, was decided in 2014 by the Supreme Court in favor of the employer.²  These cases illustrate a larger, disturbing trend of employer involvement and interference with private employee choices about reproductive health matters – and access to coverage is far from the only issue.

In fact, some employers have gone so far as to make their own opinions about the morality of family planning services the basis for taking adverse action against workers whose private health care choices do not reflect employer preferences.³  In such cases, a woman may be fired after attempting to become pregnant because her employer believes in vitro fertilization or artificial insemination is immoral; an employer may force an expectant mother out of her job, or demote her to a less visible position for less pay, because she is unmarried; a worker’s use of insurance coverage for a family member’s contraception, tubal ligation, vasectomy, or abortion may be discovered by employers who pay for the policy and whose disdain for these practices could lead them to take adverse employment action. Accessing lawful reproductive health care should never be subject to employer approval.

While there are laws in place that protect the confidentiality of medical information, they are not failsafe; employers may become aware of healthcare choices that their employees have made – particularly in small workplaces – and when they do, federal and state law provide only limited protection against discrimination when the employer disagrees with those choices.⁴

Now is a critical time for legislative action that would protect the right of all New York workers to keep their personal reproductive health care decisions private and free from employer scrutiny and reprisal. Adding a new section 203-e to the New York State Labor Law, the Boss Bill would accomplish this in three ways.

A.1142A/S.2709A will: (1) Strengthen existing confidentiality protections. Employers can sometimes gain access to sensitive information related to health care for employees and their dependents, and the Boss Bill makes it clear this information is not to be accessed without written employee consent; (2) Prohibit discrimination related to reproductive health care decisions.

The bill expressly prohibits adverse employment action based on an employee or dependent’s utilization of reproductive health services; and (3) Impose penalties. The bill allows for damages and injunctive relief in case of an employer violation, and allows for the imposition of penalties when an employer retaliates against an employee who files a complaint.

By passing the Boss Bill, the New York State legislature has the opportunity to ensure that every New Yorker has the right to make confidential family planning and reproductive health care decisions without fear of being unfairly scrutinized or penalized by employers. For these reasons, the NYCLU encourages lawmakers to approve A.1142A/S.2709A.  

1  National Women’s Law Center, Status of the Lawsuits Challenging the Affordable Care Act’s Birth Control Coverage Benefit (last updated May 22, 2015), available at http://www.nwlc.org/status-lawsuits-challenging-affordable-care-acts-birth-control-coverage-benefit.

2  Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S. Ct. 2751 (2014) (holding that, as applied to closely held corporations, Dep’t of Health and Human Svcs. regulations requiring employers to provide female employees with no-cost access to contraception per ACA violate the Religious Freedom Restoration Act).

3  See, e.g., “Teacher fired for pregnancy sues Butte Catholic schools” (Mont. Standard, Aug. 21, 2014), available at http://mtstandard.com/news/local/updated-teacher-fired-for-pregnancy-sues-butte-catholic-schools/article_9f3df7ce-29a7-11e4-805b-001a4bcf887a.html; “Educator’s suit goes to judge: Catholic teacher fired after using in vitro fertilization” (Fort Wayne J. Gazette, June 14, 2014), available at http://www.journalgazette.net/article/20140614/LOCAL03/306149979; RH Reality Check, Why a Catholic School Teacher Was Fired for an IVF Pregnancy (June 10, 2013), available at http://rhrealitycheck.org/article/2013/06/10/why-a-catholic-school-teacher-was-fired-for-an-ivf-pregnancy-and-why-she-was-awarded-171000/; “Teacher sues church over pregnancy firing” (Dayton Daily News, Dec. 28, 2012), available at http://www.daytondailynews.com/news/news/teacher-sues-church-over-pregnancy-firing/nThJR/; Firing An Employee for Having an Abortion (July 2008), available at http://quirkyemploymentquestions.com/discharge/firing-an-employee-for-having-an-abortion-quirky-question-46/.

4  Federal Title VII discrimination protections do not extend to workers at businesses employing fewer than 15 persons (accounting for over 1 million workers in New York State); and New York State Human Rights Law discrimination protections do not extend to workers at businesses employing fewer than 4 persons. N.Y. Exec Law § 292(5). According to the U.S. Census Bureau there are approximately 500,000 workers in workplaces with fewer than 5 employees in New York State, which constitute more than half of all businesses. See U.S. Census Bureau, Statistics of U.S. Businesses: 2008: New York – All industries – by Employment Size of Enterprise, available at https://www.census.gov/epcd/susb/latest/ny/NY–.HTM.