NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8769A
SPONSOR: Jaffee TITLE OF BILL: An act to amend the labor law, in relation to discrim-
ination based on an employee's or a dependent's reproductive health
decision making
PURPOSE OR GENERAL IDEA OF BILL: To prohibit employers from discrimi-
nating against employees based on the employees' reproductive health
decisions, and to provide remedies for such violations.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends the labor law by adding a new section 203-e to prohibit
an employer from discriminating against an employee on the basis of the
individual's or a dependent's reproductive health decision making,
including a decision to use or access a particular drug, device or
medical service. It also prohibits discrimination based on an employer's
personal beliefs about such services.
This section also makes clear that the bill does not conflict with any
other employee protections provided through any provision of law or
collective bargaining unit.
This section also provides that in a civil action alleging a violation
of this law, the court may award the plaintiff damages that include back
pay, benefits and reasonable attorney's fees and costs. In addition, the
court may order reinstatement or afford injunctive relief against an
employer in violation of this law. The court may also award the plain-
tiff liquidated damages equal to one hundred percent of the award for
damages, unless an employer proves a good faith basis to believe that
its actions were in compliance with the law.
This section also provides that retaliation against an employee exercis-
ing rights granted under this law shall subject an employer to separate
civil penalties.
Section 2 establishes the effective date.
JUSTIFICATION: This bill ensures that employees are able to make
their own reproductive health care decisions without incurring adverse
employment consequences because of their employers' personal beliefs
about those decisions.
The federal Affordable Care Act (ACA) recently required that health
insurance plans cover FDA-approved birth control methods without out-of-
pocket costs. Some for-profit employers have attempted to prevent
employees from accessing this benefit because it conflicts with their
personal beliefs. As a result, over 100 federal lawsuits have been filed
by employers to deny employees this benefit, including employers operat-
ing in New York State.
Employers should not be able to discriminate or interfere in employees'
personal medical decisions because of the employer's personal beliefs.
While federal and state laws have been enacted which demonstrate a
commitment to protect individuals against employment discrimination,
loopholes exist which leave employees vulnerable to discrimination based
on their reproductive health decisions. The Legislature must ensure that
the legal loopholes are corrected to ensure that employees' decisions
about pregnancy, contraception, and reproductive health are also
protected under state law.
This bill is not about insurance coverage and is not intended to require
coverage for any health care service, drug or device. This bill would
prevent an employer from discriminating against employees based on
reproductive health decisions, regardless of how the employer became
aware of those decisions. The Health Insurance Portability and Account-
ability Act (HIPAA) does offer a high level of confidentiality with
regard to medical care and decisions. However, an employer does receive
health insurance utilization summaries, which are distributed to each
employer on a regular basis. In these reports, personally identifiable
information is excluded to comply with privacy protections of HIPAA.
However, in some cases, an individual's identity may still be deduced by
an employer based on the nature of the service and composition of the
insured class reported in the summaries. While a violation of HIPAA
would be an actionable violation of privacy, there are other avenues in
which an employer may become aware of their employees personal informa-
tion. It is not unlikely that this information could be unintentionally
disclosed by a coworker, discovered through social media or electronic
surveillance currently available, or even disclosed through a personal
admission by the employee. Reproductive health care decisions, while
usually kept private, should not become society's new version of "Don't
Ask, Don't Tell". Employees must be protected from discrimination based
on the reproductive health care decisions they make. This legislation
will provide that protection.
PRIOR LEGISLATIVE HISTORY: This is new legislation.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This Act shall take effect immediately
STATE OF NEW YORK
________________________________________________________________________
8769--A
IN ASSEMBLY
February 12, 2014
___________
Introduced by M. of A. JAFFEE, BRINDISI, ROSENTHAL, DINOWITZ,
PEOPLES-STOKES, O'DONNELL, COOK, SCARBOROUGH, SKOUFIS, LIFTON, GALEF,
OTIS, GOTTFRIED, BARRETT, CAHILL, PAULIN, FAHY, ABINANTI, ROSA,
RUSSELL, ORTIZ, STECK -- Multi-Sponsored by -- M. of A. BRENNAN,
BUCHWALD, CROUCH, GLICK, HOOPER, JACOBS, MARKEY, MILLMAN, PERRY,
RIVERA, ROBERTS, WEISENBERG -- read once and referred to the Committee
on Labor -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the labor law, in relation to discrimination based on an
employee's or a dependent's reproductive health decision making
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 203-e to
2 read as follows:
3 § 203-e. Prohibition of discrimination based on an employee's or a
4 dependent's reproductive health decision making. 1. An employer shall be
5 prohibited from accessing an employee's personal information regarding
6 the employee's or the employee's dependent's reproductive health deci-
7 sion making, including but not limited to, the decision to use or access
8 a particular drug, device or medical service without the employee's
9 prior informed affirmative written consent.
10 2. An employer shall not discriminate against an employee with respect
11 to compensation, terms, conditions, or privileges of employment because
12 of or on the basis of the employee's or dependent's reproductive health
13 decision making, including, but not limited to, a decision to use or
14 access a particular drug, device or medical service, or because of or on
15 the basis of an employer's personal beliefs about such services.
16 3. Nothing in this section shall be construed to limit any rights of
17 an employee provided through any other provision of law or collective
18 bargaining unit.
19 4. An employee may bring a civil action in any court of competent
20 jurisdiction against an employer alleged to have violated the provisions
21 of this section. In any civil action alleging a violation of this
22 section, the court may:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13701-05-4
A. 8769--A 2
1 (a) award damages, including back pay, benefits and reasonable attor-
2 neys' fees and costs incurred to a prevailing plaintiff;
3 (b) afford injunctive relief against any employer that commits or
4 proposes to commit a violation of the provisions of this section;
5 (c) order reinstatement; and/or
6 (d) award liquidated damages equal to one hundred percent of the award
7 for damages pursuant to subdivision (a) of this subsection unless an
8 employer proves a good faith basis to believe that its actions in
9 violation of this section were in compliance with the law.
10 5. Any act of retaliation for an employee exercising any rights grant-
11 ed under this section shall subject an employer to separate civil penal-
12 ties under this section. For the purposes of this section, retaliation
13 shall mean discharging or otherwise penalizing an employee for:
14 (a) making or threatening to make, a complaint to an employer,
15 co-worker, or to a public body, that rights guaranteed under this
16 section have been violated;
17 (b) causing to be instituted any proceeding under or related to this
18 section; or
19 (c) providing information to, or testifying before, any public body
20 conducting an investigation, hearing, or inquiry into any such violation
21 of a law, rule, or regulation by such employer.
22 § 2. This act shall take effect immediately.
