On October 21, 2015, New York State Governor Andrew Cuomo signed into law a number of bills intended to advance women’s equality in the workplace. The bills address pay equality, sexual harassment, discrimination on the basis of sex, family status discrimination, and pregnancy discrimination. Employers should familiarize themselves with these bills before they become effective on January 19, 2016. Moreover, employers should review their relevant employment policies and pay practices to ensure compliance and decrease their risk of exposure.
New York Labor Law Section 194(1) prohibits an employee from being paid a lower wage than another employee of the opposite sex when he or she performs equal work under “similar working conditions” in a job that requires “equal skill, effort and responsibility.” This section was amended to more clearly define the permitted exceptions to the rule.
The bill acknowledges a number of exceptions to the general prohibition on unequal pay — “a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a bona fide factor other than sex, such as education, training or experience.” This suggests an increase in the standard, as employers now are required to offer proof of a “bona fide factor,” while under the previous version of the law an employer could prevail by showing that the pay disparity resulted from simply “any other factor other than sex.”
Further, the amendment provides that “no employer shall prohibit an employee from inquiring about, discussing, or disclosing the wages of such employee or another employee.” However, the bill makes clear that individuals with access to wage information of other employees as par of an essential job function, such as payroll administrators, are excepted from the prohibition.
Finally, the bill substantially increases the amount of liquidated damages available to an employee who has been paid less than the wage to which he or she is entitled. Under the bill, an employee can recover up to 300% — up from 100% — of unpaid wages for willful violations and may also recover attorney’s fees.
An amendment to New York Executive Law Section 292(5) expands protection for employees facing sexual harassment to employees of all employers — even those with fewer than four employees, the previous threshold. All employees are now able to file workplace sexual harassment complaints and bring an action in court.
Discrimination on the Basis of Sex
An amendment to New York Executive Law Section 297(10) states that the court may in its discretion award reasonable attorney’s fees to the prevailing party in a case involving employment or credit discrimination on the basis of sex. This applies to successful plaintiffs and to successful defendants who can show that the plaintiff’s claims were frivolous.
Family Status Discrimination
An amendment to New York Executive Law Section 296(1) and (1)(a) prohibits employers, licensing agencies, employment agencies, and labor organizations from discriminating on the basis of familial status. The amendment adds familial status to the existing list of unlawful discriminatory practices based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status and domestic violence victim status.
An amendment to New York Executive Law Section 292(21-e) requires employers to provide reasonable accommodations to employees with “pregnancy-related conditions.” An exception is made where the accommodations would impose an undue hardship on the employer’s business. A pregnancy-related condition means a condition related to pregnancy or childbirth, limited to conditions which, “upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.” An employee must provide information necessary to verify the existence of the pregnancy-related condition.