United States: New York State Expands Protections For Women And Adopts Other Significant Changes Impacting Employers

New York State employers should be aware of significant new laws recently signed by Governor Cuomo, which become effective as of January 19, 2016, as well as new regulations that will soon be issued at the Governor's instance. While these new laws were passed as part of the Governor's Women's Equality Agenda from 2013, as explained below, employers need to be mindful of the various ways in which their operations could be impacted and their policies, handbooks, application forms and related procedures may need to be revisited with respect to female employees and applicants as well as other protected individuals. Finally, this alert provides an update about compliance with the now-effective New York City Fair Chance Act.

Pay Equity 

First, the exceptions that have been available to employers under Labor Law Section 194 have now been revised. That statute prohibits differentials in pay rates due to sex within "the same establishment." Previously, differentials could be justified based on a seniority system, a merit system, a system which measures earnings by quantity or quality of production or based on any other factor other than sex. Now, the final factor has been expanded, such that the employer can rely on a bona fide factor other than sex "such as education, training or experience." The statute is specific that such factor shall not be based on or derived from a sex-based differential in compensation and shall be job-related with respect to the position in question and consistent with business necessity. The exception does not apply when the employee is able to demonstrate that the employer uses a particular practice that causes a disparate impact, that an alternative practice exists that would serve the same business purpose and not produce such differential, and the employer has refused to adopt the alternative practice. The revised statute clarifies that pay differentials are prohibited even between employees in different physical locations. The statute also defines when employees are considered to work within the same establishment as covering employees working for the same employer at workplaces in the same geographic region (no larger than a county), taking into account population distribution, economic activities and/or the presence of municipalities. Employers may wish to self-audit to make sure their pay practices are compliant.

Employee Discussions of Wages 

Employees now have new protections with respect to pay transparency pursuant to Labor Law Section 194. Employers are prohibited from discriminating against an employee who has inquired about, discussed or disclosed his or her wages or the wages of others. The Commissioner of Labor will issue regulations setting time, place and manner restrictions for workplace wage discussions. The National Labor Relations Act provides similar protections with respect to all covered employers, and the current National Labor Relations Board reads that protection as extending even to non-unionized workplaces. But it is now inescapable in New York that discussion of wages is protected activity.

Enhanced Penalties for Violations 

Additionally, willful violations of Section 194 can now give rise to liquidated damages of 300 percent of the actual wages determined to be owed (an increase from the 100 percent liquidated damages available previously).

Even Very Small Employers Are Covered as to Sexual Harassment   

The threshold number of employees that an employer must have in order to be held liable for sexual harassment in violation of the New York State Human Rights Law has been eliminated. Previously, employers with fewer than four employees were not covered. Now all employers are covered, but only as to sexual harassment.

Attorneys' Fees are Recoverable in Sex Cases  

The New York State Human Rights Law has long lagged behind many states in not providing for the recovery of attorneys' fees on behalf of victorious employees and applicants who sue for discrimination. That has now changed, but only as to cases involving sex. Attorneys' fee recovery is now authorized solely for unlawful discriminatory practices in employment and credit involving sex. That wall having fallen, we may well see broadening of the ability to recover fees for other types of claims in the coming years, which could lead to more discrimination cases being filed in state rather than federal court (a trend that is already underway in New York City cases, in which an increasing number of plaintiffs focus on claims under the very pro-employee New York City Human Rights Law).

Familial Status Protection  

A new protected category has been added to the Human Rights Law applicable to employers. Employers now may not discriminate against employees and applicants on the basis of familial status. This provision provides protection for pregnant women, parents, guardians of children and persons who have legal custody or who are in the process of obtaining legal custody of children. Discrimination based on familial status was already barred in the housing and credit arenas.

Pregnancy Discrimination

The Human Rights Law now requires employers to provide reasonable accommodations for pregnancy-related conditions unless doing so would cause an undue hardship to the employer. This law protects pregnant women during and post-childbirth. A pregnancy-related condition is to be treated as a temporary disability. The employee is to be accommodated so long as she can perform her duties in a reasonable manner with accommodation. This protection is already afforded by the Americans with Disabilities Act (according to the EEOC) and the New York City Human Rights Law.

Gender Identity and Gender Dysphoria  

In addition, Governor Cuomo has promulgated proposed regulations pursuant to existing provisions of the State Human Rights Law which will expand the existing protections for discrimination on the basis of sex to encompass gender identity, transgender status and gender dysphoria. The new proposed regulations can be viewed here.

Gender identity is defined to mean having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that identity, self-image, appearance, behavior or expression differs from that traditionally associated with the sex assigned to that person at birth. Transgender person is defined as an individual who has a gender identity different from the sex assigned at birth. Gender dysphoria is identified as a recognized medical condition relating to an individual having a gender identity different from the sex assigned at birth. As a result of the new regulations, discrimination will be prohibited in all areas where sex is a protected category as to gender identity and the status of being transgender and harassment on the basis of gender identity or transgender status is considered sexual harassment. Presumably, the new ability to recover attorneys' fees in sex discrimination cases will apply to this new category of claims.

The new regulations will provide additionally that discrimination on the basis of gender dysphoria is disability discrimination under the Human Rights Law. As a result, refusal to provide reasonable accommodation for persons with gender dysphoria, where requested and necessary, and in accordance with the Division's regulations concerning reasonable accommodation (see 9 NYCRR Section 466.11), is considered to be disability discrimination.

It would not be surprising to see at some point a challenge to the regulations once they are adopted on the grounds that they impermissibly expand liability beyond that created by the legislature. It is premature to predict how such a challenge would fare. It is anticipated that the regulations will be adopted before the end of 2015.

New York City Fair Chance Act Goes Into Effect 

Finally, as previously reported, the New York City Fair Chance Act, which has just gone into effect, imposes significant restrictions on employers' practices with respect to the hiring of persons with criminal records. Among other things, if a post-offer background check reveals a conviction that the employer concludes may disqualify the applicant, the employer must notify the applicant and provide an opportunity to provide information that would help persuade the employer to extend the offer. The New York City Commission on Human Rights has now issued a fact sheet about the law as well as a sample form that employers can use for this purpose. Links for both are provided here. 

Click here for fact sheet.

Click here for sample form.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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