United States: Governor Cuomo Signs Women's Equality Agenda; New Law Strengthens Equal Pay Protections

On October 21, 2015, Governor Andrew Cuomo signed a group of eight laws, called the Women's Equality Agenda, which expand protections for women in the workplace in New York. The act will become effective on January 19, 2015. The new laws give stronger protections to employees by amending existing laws to provide expanded equal pay obligations, protections for victims of sexual harassment, attorneys' fees for prevailing plaintiffs in sex discrimination suits, the addition of familial status as a protected category under the New York State Human Rights Law, and a requirement that employers reasonably accommodate pregnancy-related conditions.

New Equal Pay Law

The Achieve Pay Equity law, a core component of the Agenda, amends New York's current Equal Pay Act (Section 194(a) of the New York Labor Law). The amendments change the way employees prove and employers defend against claims of unequal pay. Under the existing law, an employer could defend against a claim of a gender-based wage differential by showing that the differential was based on any "factor other than sex." The amendments remove that language and instead require that employers show a "bona fide factor such as education, training or experience" that supports the difference in pay. In addition, the factor relied upon by the employer must be job-related and consistent with business necessity. Even if the employer has met this burden, the new law allows the employee to prevail if he or she can prove three things: First, that the employer's practice causes a disparate impact on the basis of sex. Second, that a viable alternative practice exists that would both remove the wage differential and serve the same business purpose, and third that the employer refused to adopt the alternative practice.

The new law also amends what is considered to be part of the "same establishment" for purposes of an equal pay act claim. The existing law looks at wages of employees in the "same establishment" in order to determine whether employees who work for the same employer are being paid unequally based on their gender. The amendment to the Equal Pay Law now defines "same establishment" as the same geographical region, so long as the region is not larger than a county. This allows employers to compare employee wages across all stores in the same city or borough, as opposed to looking only at one location. The law also provides that employers may not prohibit employees from inquiring, discussing, or disclosing wages, and increases the amount of liquidated damages for a failure to pay wages under the New York Labor Law to 300% for willful violations of the Equal Pay Law.

Victims of Sexual Harassment Protections

The Protect Victims of Sexual Harassment law amends the definition of an "employer" in the New York State Human Rights Law for sexual harassment claims. While the old definition did not include any employer with fewer than four employees, the new definition expands the coverage of the law for sexual harassment claims to all employers, regardless of the number of employees. This expansion of coverage, however, only applies to sex discrimination claims based on sexual harassment.

Attorneys' Fees for Sex Discrimination Claims

While attorneys' fees were previously only available for housing discrimination claims under the New York State Human Rights Law, the Remove Barriers to Remedying Discrimination law amends the statute to allow a prevailing plaintiff in an employment sex discrimination case to recover reasonable attorneys' fees at the court's discretion. The law also allows a prevailing respondent or defendant to recover attorneys' fees, but only if they make a motion requesting such fees and can show that the plaintiff's case was frivolous. This is a higher burden than what prevailing plaintiffs have to meet in order to obtain fees. Still, the new law does not change the Human Rights Law's bar on attorneys' fees for other types of employment discrimination claims.

Family Status Discrimination

The End Family Status Discrimination law adds familial status as a protected group under the Human Rights Law. Familial status refers to an employee's status as a parent or guardian of children under the age of eighteen. The law prohibits discrimination based on familial status for employers, employment agencies, licensing agencies, and labor organizations. While the new law was signed as part of the Women's Equality Agenda, it applies equally to men and women who are parents or guardians.

Accommodating Pregnant Employees

The Protect Women from Pregnancy Discrimination law requires employers to provide a reasonable accommodation for a pregnancy-related medical condition, provided the accommodation does not impose an undue hardship on the employer. The employee must be willing to provide medical or other information to verify the existence of the pregnancy-related condition if the employer requests.

These new laws follow a trend of other states and cities increasing protection for women in the workplace. Earlier in October, California passed the Fair Pay Act which includes many of the same protections included in New York's Achieve Pay Equity law, and in 2013 New York City passed a law increasing protections for pregnant employees that also included a duty to accommodate. In light of the recent amendments, employers across New York State should review and update their human resources policies to reflect these changes to New York law. New York based employers should also incorporate the new laws into their training programs to properly inform their employees and supervisors of the new requirements.

Governor Cuomo Signs Women's Equality Agenda; New Law Strengthens Equal Pay Protections

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