Navigating the Patchwork of Pregnancy and Postpartum Protections

It has taken half a century for pregnancy to move from a private circumstance to a legally protected condition. The journey from outright employment bans to affirmative accommodation mandates traces one of the most significant evolutions in American workplace law. For New York employers, the shift has seemingly accelerated sharply in recent years. With overlapping federal and state regimes now in place, the risk of misstep, and subsequent litigation for those who fail to adapt, has never been greater.

When Congress passed the Pregnancy Discrimination Act of 1978 (42 U.S.C. §2000e(k)) (“PDA”), it did so in direct response to the Supreme Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which held a pregnancy exclusion from disability benefits was not sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) (42 U.S.C. §2000e et seq.). The 1978 amendment to Title VII made clear that discrimination “because of sex” includes pregnancy, childbirth, and related conditions. From that point forward, employers could not lawfully fire or demote a worker because of pregnancy, nor deny her benefits available to other temporarily disabled employees.

Fifteen years later, the Family and Medical Leave Act of 1993 (29 U.S.C. §2601 et seq.) (“FMLA”) added a second layer of protection; twelve weeks of unpaid, job-protected leave for childbirth and bonding. But the FMLA’s coverage thresholds (50 employees in a 75-mile radius, 12 months’ tenure) left millions uncovered.

For the next three decades, federal law stood still until a series of bipartisan reforms reignited the conversation. The PUMP Act of 2022 (29 U.S.C. §218d) extended lactation rights to nearly all employees, and in 2023, the Pregnant Workers Fairness Act (42 U.S.C. §2000gg et seq.) (“PWFA”) broke new ground by requiring reasonable accommodations for pregnancy-related limitations, even when not disabling. The 2024 regulations promulgated by the U.S. Equal Employment Opportunity Commissions (“EEOC”) list examples of per se reasonable accommodations required by employers of pregnant employees: additional rest breaks, modified uniforms, permission to carry water, or temporary reassignment to light duty. In practice, the PWFA has imported the “interactive process” model of the American with Disabilities Act of 1990 (42 U.S.C. §12101, et seq.) into pregnancy laws, creating fertile ground for litigation in federal courts.

New York has, historically and characteristically, gone further than its federal counterparts. The New York State Human Rights Law (Executive Law §296 et seq.) (“HRL”) has prohibited pregnancy-related discrimination as a form of sex discrimination since 1965, but a 2015 amendment to HRL (§292.21-f) explicitly defined “pregnancy-related conditions” and the requirement of reasonable accommodations. In 2019, the New York State Legislature also enacted the Pregnant Employees’ Fairness Act (Labor Law §203-e), further banning discrimination and retaliation on the basis of reproductive health decision making, and mandating written notice of these rights be disseminated to employees.

Meanwhile, a separate constellation of state laws has provided a growing number of entitlements available to pregnant and postpartum employees. The Disability Benefits Law (Workers’ Compensation Law §200 et seq.) provides partial wage replacement for pregnancy-related medical recovery (typically six to eight weeks postpartum). The Paid Family Leave Law (2018) offers up to twelve weeks of paid, job-protected bonding leave at two-thirds salary. The Paid Sick Leave Law (Labor Law §196-b, 2021) allows prenatal or postpartum medical use of accrued time. The Lactation Accommodation Law (Labor Law §206-c) – expanded in 2023 – requires, inter alia, a private space with refrigeration and electrical access for expressing breast milk. The newest addition, the Prenatal Leave Law (Labor Law §196-c, 2025), creates 20 hours of paid prenatal leave annually for medical appointments and testing. New York thus became the first state to guarantee stand-alone prenatal leave separate from other entitlements.

For employers, these layered statutes form a dense lattice of obligations. Each law carries its own enforcement route:

• The EEOC for federal claims alleged under Title VII, ADA, PDA, and PWFA (which, procedurally, may result in a federal district court action).

• The U.S. Department of Labor for FMLA and PUMP Act matters.

• The NYS Department of Labor, Workers’ Compensation Board, Division of Human Rights, or Supreme Court for state claims.

The overlap produces fertile ground for dual filings and concurrent jurisdiction. A single factual scenario such as a denied request for light duty or a termination following a prenatal appointment can now trigger claims under multiple distinct statutes.

Litigation trends emerging reveal several recurring patterns, including but not limited to the failure to engage in the interactive process, retaliation following requests for leave or other accommodations, interference with leave (especially where employers miscalculate concurrent eligibility), constructive discharge allegations where pregnant employees face schedule reductions or reassignment after disclosure or birth, or straightforward acts of claimed discrimination or harassment.

The exposure to potential liability under these laws is significant. Federal and state laws alike permit back pay, compensatory damages, punitive damages, and attorney’s fees. The HRL further allows individual liability for supervisors who participate in discriminatory acts, an often-overlooked distinction from Title VII.

As awareness spreads, plaintiffs’ counsel are combining state and federal theories into hybrid complaints. A routine failure to grant a modified schedule can now yield a multi-count action alleging violations of any combination of these laws. Moreover, New York’s broad anti-retaliation provisions create low thresholds for pleading adverse action.

What began as a mandate for equal treatment has evolved into a layered and overlapping regime of affirmative accommodation obligations representing a profound transformation of workplace rights. For New York State employers, pregnancy and postpartum protections are no longer peripheral concerns but a central compliance obligation. The modern risk lies less in overt bias than in administrative oversight, as even well-intentioned employers may stumble amid intersecting statutes and enforcement avenues. Preventive lawyering through updated policies, consistent documentation, and proactive supervisor training is the most effective way to navigate these converging obligations and avoid costly missteps.

Ryan T. Biesenbach is an Associate in Underberg & Kessler LLP’s Litigation and Labor & Employment practice groups. He focuses his practice on civil and commercial litigation and labor & employment law, including the development of employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and compliance with state and federal labor laws. Ryan can be reached at (585) 258-2865 or rbiesenbach@underbergkessler.com.

Reprinted with permission from The Daily Record and available as a PDF file here.