United States: NY Governor Signs Bills Expanding Workplace Protections Against Sex Discrimination And Promoting Wage Equality

New York Governor Andrew Cuomo recently signed a series of bills that seek to improve wage equality and expand employee protections from sex discrimination.

A number of these bills will bring New York state law in line with existing New York City laws. Copies of the bills can be found here. The bills also, however impose some new obligations, requiring all New York employers to review their workplace policies and procedures to ensure compliance.

The Governor also introduced regulations that, if promulgated, would recognize transgender status and gender identity as protected classes under the New York Human Rights Law.

Below is a summary of key changes to the law that will have a day-to-day impact on New York employers, effective January 19, 2016:

Employers cannot prohibit employees from disclosing and discussing wages:

Employers may have written policies establishing reasonable limitations on the time, place, and manner of wage discussions, but cannot prohibit those discussions. Employers may prohibit employees from discussing another employee's wages without his/her consent and/or forcing co-workers to disclose their wages. Employers may also preclude employees who have access to wage information for work-related reasons from disclosing the wage information to those without such business-related access, unless the disclosure is in connection with a wage complaint, charge or investigation. This new requirement may require employers to update templates and handbook policies that include blanket preclusions on the use or disclosure of wage information.

Employers' defense to gender-based wage differential claims is further defined:

To assert a gender-based unequal pay claim, an employee has to show that an employee of the opposite sex in the same establishment is paid more for equal work that requires equal skill, effort and responsibility, and which is performed under similar working conditions. To defeat this claim, an employer must show that this pay differential is based on seniority, merit, a system that measures earnings by quantity or quality of production, or, under the new law, "a bona fide factor other than sex, such as education, training, or experience." This "bona fide factor" must be job-related and consistent with business necessity. Previously, the law was vaguer, stating that to defeat a claim, the employer could show that the wage differential was due to "any factor other than sex." The new law also broadens the definition of "same establishment" to include all workplaces of the employer that are "located in the same geographical region, no larger than a county," and not necessarily just the particular office or store where the employee at issue may physically work.

All New York employers now subject to prohibitions on workplace sexual harassment, regardless of size:
Previously, only employers with four or more employees were covered under the law. The four-employee threshold still applies to other state discrimination and harassment claims.

"Familial status" and, *if promulgated,* "Transgender status" and "Gender Identity" to be added as new protected categories under the Human Rights Law:

  • Familial Status: Under the new law, employers are prohibited from discriminating against an applicant or employee due to pregnancy, or because the applicant or employee has a child, or is in the process of securing legal custody of a child. While the law does not require employers to provide reasonable accommodations to employees who are parents, it does add accommodation requirements for pregnant employees (similar to existing New York City law; see below).
  • Transgender Status and Gender Identity: The proposed state regulations (available here) would expand the definition of "sex discrimination" under the New York State Human Rights Law to preclude discrimination on the basis of gender identity or transgender status (as already the case under New York City law). They also specifically recognize gender dysphoria as a "disability" under State law, which an employer would be required to accommodate. Gender dysphoria is defined as "a recognized medical condition related to an individual having a gender identity different from the sex assigned to him or her at birth." These proposed regulations are subject to a 45-day notice and comment period before being promulgated.

All New York State employers now required to provide reasonable accommodation to pregnant employees, in line with existing New York City law:
Employers will be required to engage in an individualized interactive process with pregnant employees and provide accommodation for pregnancy-related conditions. Employers may require pregnant employees to provide medical or other necessary information when considering any requested accommodation and/or to verify the pregnancy-related condition.

Enhanced liquidated damages and attorneys' fees:

  • Employers may now be subject to liquidated damages of 300% of the total amount of wages found due for willful violations of the equal pay requirement (up from 100%); this is in addition to payment of the underlying wages owed.
  • Prevailing plaintiffs in sex-discrimination cases under New York State law will now be able to recover attorneys' fees (bringing New York State law in line with New York City law).

Bottom Line

All New York employers should review their workplace policies and agreements to eliminate blanket prohibitions on employee discussion and/or disclosure of wage information, and update their policies and training materials to reflect the new protected classes recognized under New York law. All New York employers must also make sure to engage in the interactive process with and accommodate pregnant employees, and comply with New York State equal pay and sex discrimination/harassment laws to avoid significantly enhanced liquidated damages and/or attorneys’ fees awards.

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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