Today, legislation known as the Women's Equality Agenda went into effect, significantly amending New York's equal pay, sex discrimination and sexual harassment laws to provide greater protection for women in the workplace. New York employers are encouraged to become familiar with the various components of the legislation outlined below:
- Equal pay: Expands the definition of equal pay and provides for substantial liquidated damages for violations. As originally enacted, the New York Labor law required employers to pay women the same as men for work that required “equal skill, effort and responsibility” but permitted pay differentials for seniority, merit or any factor “other than sex.” The amended text limits the last requirement to “a bona fide factor other than sex, such as education, training or experience” and requires that any pay differential be job related and consistent with business necessity. However, this exception will not apply if the employee demonstrates that (a) the employer uses a practice that causes a disparate impact on the basis of sex; (b) an alternative employment practice exists that would serve the same business purpose and not produce such differential; and (c) the employer has refused to adopt such alternative practice.
Additionally, the amendment expands on the requirement that women are entitled to the same pay as similarly situated men working in the “same establishment” by expanding the definition of “same establishment” to include “workplaces located in the same geographic region, no larger than a county,” meaning, for example, that employers with multiple offices in Manhattan will be responsible for ensuring pay equity between male and female employees performing the same work across those offices. Notably, the amended statute provides for liquidated damages of 300% of wage underpayment for a willful violation.
- Pay transparency: Prohibits employers from discriminating against an employee who inquires about, discusses or discloses his or her wages or the wages of another employee. However, employers may establish written workplace policies that create reasonable limitations on the time, place and manner of wage discussions, and employers may prohibit employees from discussing or disclosing the wages of another employee without his or her prior permission.
- Sexual harassment: Eliminates the four employee threshold for employers under the New York State Human Rights Law (NYSHRL) as it relates to sexual harassment protections. Now, all employees will be covered by New York's sexual harassment laws, not just employees of businesses with four or more employees.
- Accommodations for pregnancy-related conditions: Clarifies that employers must provide reasonable accommodations for pregnancy- and childbirth-related medical conditions unless doing so would cause an undue hardship to the employer. Such accommodations can include modified work schedules, rest and break periods and reassignment to less physically strenuous tasks. Employees must cooperate in providing medical information (a) necessary to verify the existence of the pregnancy-related condition; or (b) necessary for consideration of the accommodation.
- Attorneys' fees for successful plaintiffs in sex discrimination cases: Allows plaintiffs to recover reasonable attorneys' fees where an employer is found liable under the NYSHRL for committing an unlawful discriminatory practice in employment where a basis for the discrimination is sex. Likewise, the amendments permit a prevailing employer to recover attorneys' fees upon a successful motion that the employee's claim was frivolous and commenced or continued in bad faith.
- Familial status discrimination: Amends the NYSHRL to prohibit employment discrimination based on “familial status,” meaning that employers are prohibited from discriminating against anyone who is pregnant, has a child or is in the process of securing legal custody of a child. This requirement applies to all stages of employment, including the recruitment and hiring processes, as well as to decisions regarding discipline, promotions and termination.
In light of these amendments, employers in New York are encouraged to consult with legal counsel to ensure that their workplace policies and practices comply with the new laws. In particular, employers should closely review any variations in pay among male and female employees and adjust any discrepancies that are not job related and consistent with business necessity.