Employers Must Notify Employees of their Rights and Remedies Under The Act
New York State’s Reproductive Health Bias Law
New York State’s Reproductive Health Bias Law (the “Act”) has been reinstated following a Second Circuit ruling. The Act, found in Section 203-e of New York State’s Labor Law, prohibits discrimination based on an employee’s or dependent’s reproductive health decision-making. New York employers must notify employees of their rights and remedies under the Act.
Provisions of the Act
Accessing Personal Information Prohibited
The Act prohibits an employer from engaging in several things including accessing an employee’s personal information regarding the employee or the employee’s dependent’s reproductive health decision-making, without the employee’s prior informed affirmative written consent. Reproductive health decision-making includes, but is not limited to, the decision to use or access a particular drug, device, or medical service.
Discrimination and Retaliation Prohibited
Second, the Act prohibits an employer from 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 dependent’s reproductive health decision-making.
The Act defines retaliation or retaliatory personnel action to include discharging, suspending, demoting, or penalizing an employee for:
- Making or threatening to make a complaint to an employer, co-worker, or public body that the rights guaranteed under the Act have been violated;
- Causing an employer to be instituted to any proceeding under or related to the Act; or
- Providing information or testifying before a public body conducting an investigation, hearing, or inquiry into a violation of the Act.
Required Notice to Employees
Finally, the Act requires an employer, who provides an employee handbook to its employees, to include a notice of the employees’ rights and remedies under the Act.
Employee Remedies
Employees may pursue civil court action against employers alleged to have violated the Act seeking an award of the following remedies:
- Damages to prevailing plaintiffs, including, but not limited to, back pay, benefits, reasonable attorneys’ fees and costs incurred;
- Injunctive relief against an employer that commits or proposes to commit a violation of the Act;
- Reinstatement; and/or
- Liquidated damages equal to 100% of the award for damages, unless the employer proves a good faith basis to believe that its actions in violation of the Act were in compliance with the law.
Employers shall be subject to separate civil penalties under the Act for any acts of retaliation against an employee.
The Act’s History and Second Circuit Ruling
In 2022, after the Act was challenged on First Amendment grounds, the United States District Court for the Northern District of New York issued a permanent injunction barring enforcement of the Act’s Notice Provision in CompassCare v. Cuomo, 594 F. Supp. 3d 515, 529-30.
In 2023, the Second Circuit decided Slattery v. Hochul, which held that an employer may have an “associational-rights” claim if NYLL Section 203-e “forces [the employer] to employ individuals who act or have acted against the very mission of its organization.” 61 F.4th 278, 288 (2d Cir. 2023).
In light of its Slattery decision, on January 2, 2025, on appeal, in CompassCare v. Hochul, 125 F.4th 49, the Second Circuit vacated the District Court’s dismissal of Plaintiffs’ expressive-association claim, the grant of summary judgment to Plaintiff as to the Act’s Notice Provision, and the permanent injunction, and remanded the case back to the District Court to determine whether any Plaintiff had plausibly alleged an associational-rights claim under Slattery.
The Second Circuit was satisfied that the Notice Provision is “reasonably related to the State’s interest in preventing deception of employees as to their statutory rights, and that the Notice Provision’s prescribed method of notification is not unjustified or unduly burdensome.” 125 F.4th at 67.
Employer’s Next Steps
In light of the Second Circuit’s ruling in CompassCare, employers should make sure they are complying with the Notice Provision requirements of the Act.
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