United States: New York Enacts Extensive New Protections for Women in the Workplace

On October 21, 2015, New York Governor Andrew Cuomo signed into law a series of bills that expands the state's gender-based employment protections. The bills are part of a legislative package, known more commonly as the Women's Equality Act, which Cuomo first introduced back in 2013 in an effort to combat perceived workplace sex discrimination, among other things. Each of the new laws, discussed in turn below, takes effect on January 19, 2016.

Expanded Equal Pay Protections

The first bill the governor signed comprises a series of four principal amendments to New York Labor Law (NYLL) section 194, which addresses gender-based pay disparities.

The first amendment narrows the conditions under which an employer may pay comparable male and female employees differently. Before the new amendments, NYLL section 194 provided:

No employee shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to a differential based on: (a) a seniority system; (b) a merit system; (c) a system which measures earnings by quantity or quality of production; or (d) any other factor other than sex.

The amendment supplants subsection (d) ("any factor other than sex"), with the following language: "a bona fide factor other than sex, such as education, training or experience." The amendment goes on to provide that:

such factor: (i) shall not be based upon or derived from a sex-based differential in compensation and (ii) shall be job-related with respect to the position in question and shall be consistent with business necessity. Such exception [] shall not apply when the employee demonstrates (a) that an employer uses a particular employment practice that causes a disparate impact on the basis of sex, (b) that an alternative employment practice exists that would serve the same business purpose and not produce such differential, and (c) that the employer has refused to adopt such alternative practice.

All of the above makes it more difficult for companies to justify pay disparities between similarly situated male and female employees.

The second amendment clarifies that workers shall be considered working "in the same establishment," for purposes of NYLL section 194, "if the employees work for the same employer at workplaces located in the same geographical region, no larger than a county." This change means that employees may pursue gender-based pay disparity claims based upon compensation earned by employees working at different facilities, so long as such facilities are within the same region.

The third amendment provides that employers may not prohibit an employee "from inquiring about, discussing, or disclosing the wages of such employee or another employee." Employers may nevertheless maintain a written policy imposing reasonable limits on "the time, place and manner for inquiries about, discussion of, or the disclosure of wages." Employers should review their handbooks and policy manuals to ensure that their written policies comply with this amendment.

The fourth and final amendment, which is self-explanatory, provides that, for willful violations of NYLL section 194, an aggrieved employee may recover liquidated damages equal to 300% of the unpaid wages owed to such employee. That is triple the amount employees may recover for other types of NYLL violations.

Accommodations for Pregnant Employees

The second bill in Cuomo's legislative package amends the state's anti-discrimination law to require that employers provide reasonable accommodations to employees because of a "pregnancy-related condition." Under existing law, employers are only required to provide accommodations to disabled workers.

The new law defines a "pregnancy-related condition" as:

a medical condition related to pregnancy or childbirth that inhibits the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques; provided, however, that in all provisions of this article dealing with employment, the term shall be 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; and provided further, however, that pregnancy-related conditions shall be treated as temporary disabilities for the purposes of this article.

As a result of the new law, employers should be prepared to engage in the interactive process when an accommodation request is made because of a "pregnancy-related condition." To facilitate this process, the law requires an employee who requests an accommodation to cooperate by providing medical or other information necessary to verify the existence of the pregnancy-related condition, or that is necessary for consideration of the accommodation.

Notably, for NYC employers, this new law is a non-event, as city law has required accommodations for pregnant workers for almost 18 months.

Ban on "Familial Status" Discrimination

The third bill Cuomo signed adds "familial status" to the list of protected classes under the state's anti-discrimination law, placing an individual's family status on equal footing with race, age, religion, and other statutorily protected characteristics. The new law means that employers may not discriminate, harass, retaliate, or otherwise treat employees or job applicants unlawfully based upon such employee's or applicant's familial status, a term defined by existing law as:

  • Any person who is pregnant or has a child or is in the process of securing legal custody of any individual who has not attained the age of 18 years, or
  • One or more individuals (who have not attained the age of 18 years) being domiciled with:
    • A parent or another person having legal custody of such individual or individuals, or
    • The designee of such parent

This means that employers cannot, for instance, discriminate against an employee because of his/her status as a parent or because (s)he has a child. The law does make clear, however, that employers are not required to provide reasonable accommodations based on an employee's "familial status."

Attorneys' Fees for Prevailing Parties

The fourth bill the governor signed permits, but does not require, state courts and the New York State Division of Human Rights (the state's fair employment practices watchdog) to award attorneys' fees – previously unrecoverable under state law – to "any prevailing party" in a case involving a discrimination claim based, at least in part, on an employee's sex. Despite the discretion seemingly afforded by the new law, employers may only recover their attorneys' fees if they can show that an employee's claim is truly frivolous (and, even then, a fee award will hardly be a "given").

Sexual Harassment Claims Can Be Brought Against "All Employers"

For years, the state's anti-discrimination law has only protected individuals employed by entities with four or more employees. The package of bills signed by Cuomo expands this coverage, albeit only on a limited basis. Specifically, Cuomo signed a bill providing that sexual harassment claims may be asserted against "all employers," regardless of their size. This means that small businesses that previously did not have to worry about harassment claims will now need to develop comprehensive anti-harassment policies, and train employees on the same.

Despite this change, the new law is clear that it applies only to sexual harassment claims, and not other types of sex-based discrimination claims.

What Does This Mean for My Company?

Gov. Cuomo's signing of the above bills signals a clear emphasis by the state on combating perceived workplace sex discrimination. Given the short time span between now and the January 19, 2016 effective date of the new laws, New York employers need to immediately review their policies and procedures and make changes where required to ensure compliance with the new laws. Doing so makes sense not just from a legal perspective, but also to ensure a level playing field for all employees.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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