I. The Women’s Equality Act
On October 21, 2015, New York State Governor Andrew Cuomo signed eight pieces of legislation, known collectively as the Women’s Equality Act and effective in January 2016, into law. The Women’s Equality Act was first introduced in the New York State Legislature in 2012 and aims to strengthen and expand protections for women in the areas of equal pay and sex discrimination. The five new employment-related laws outlined below are especially important for New York employers.
II. Amending the Equal Pay Law
The Achieve Pay Equity bill amends Section 194 of the New York Labor Law, which requires employers to provide equal pay to men and women for equal work performed in the same establishment, in several ways. First, the new law broadens the definition of “same establishment” to include workplaces located in the same geographical region. As a result, it is now possible to compare the wages of employees who work for the same employer but in different locations within the same county.
Second, the new law makes it more difficult for employers to defend wage differentials. An employer is permitted to pay different wages to men and women under Section 194(1) only if the rationale involves 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. The new law not only qualifies this provision by adding the word “bona fide,” but it also provides examples of appropriate factors other than sex, including education, training, or experience. Further, under the new law, employers must demonstrate that this factor (1) is not based upon or derived from a sex-based differential in compensation; (2) is job-related with respect to the position in question; and (3) is consistent with business necessity, which the new law defines as a factor that bears a manifest relationship to the employment in question. The employee, however, can overcome the employer’s defense if she can demonstrate that (1) the employer uses a particular employment practice that causes a disparate impact on the basis of sex; (2) an alternative employment practice exists that would serve the same business purpose and not produce such differential; and (3) the employer has refused to adopt such alternative practice.
Third, under the new law, with limited exceptions, employers must permit their employees to inquire about, discuss, or disclose their wages with each other, without threatening termination or suspension.
Finally, in cases where an employer willfully fails to pay employee wages, the Achieve Pay Equity bill amends Section 198 of the New York Labor Law and increases the amount of liquidated damages that may be awarded from 100% of wages owed to 300% of wages owed.
III. Pregnancy Discrimination
The Protect Women from Pregnancy Discrimination bill amends Section 296 of the New York State Human Rights law and explicitly requires that employers provide reasonable accommodations for pregnancy-related conditions, unless the accommodation would impose an undue hardship on the employer. Further, the new law codifies the requirement that an employee must provide medical or other information to verify the existence of a pregnancy-related condition, upon the employer’s request.
IV. Sexual Harassment
The Protect Victims of Sexual Harassment bill amends Section 292 of the New York State Human Rights law and permits employees to file sexual harassment claims against employers of any size. Under the former provision, employees were permitted to pursue these claims only against employers with four or more employees.
V. Family Status Discrimination
The End Family Status Discrimination bill amends Section 296 of the New York State Human Rights Law and prohibits employment discrimination against any employee on the basis of familial status. Familial status attaches to a person who is pregnant, has a child, or is in the process of securing legal custody of any individual under eighteen. Previously, the law prohibited discrimination based on familial status only in cases related to housing and credit.
VI. Recovery of Attorneys’ Fees in Employment and Credit Discrimination Cases
The Remove Barriers to Remedying Discrimination bill amends Section 297 of the New York State Human Rights Law and permits the recovery of reasonable attorneys’ fees in cases of employment and credit discrimination based on sex. Defendants in these cases can recover reasonable attorneys’ fees only if they can demonstrate that the action was frivolous. This amendment does not impact the Human Rights Law’s provisions that preclude the recovery of attorneys’ fees in other kinds of employment discrimination cases.
In light of the passage of the Women’s Equality Act, employers should:
- Carefully examine their existing pay practices and pay structures;
- Ensure that their employee handbooks are updated to reflect the new requirements outlined above; and
- Closely evaluate their standards for providing accommodations to employees who are pregnant.