On October 21, 2015, New York Governor Cuomo signed a series of bills that are commonly referred to as pieces of the Women’s Equality Act. These laws are intended to expand the rights of women in New York. Six of the bills directly addressed sex-related issues in the workplace. Although the laws do not go into effect until January 19, 2016, employers should use this short window to ensure that their policies comply with the new extended requirements.
Equal Pay for Equal Work
Under current fair pay law, an employee may not be paid less than the rate at which an employee of the opposite sex at the establishment is paid, so long as both employees are performing work that requires equal skill, effort, and responsibility, and is performed under the same working conditions. Employers may, however, pay such employees two different wages if doing so complies with the employer’s seniority system, merit system, system that measures earnings by the quality or quality of production, or any other factor unrelated to sex.
The new law will erase the “other factor” exception and replace it with a new, more specific exception. Employers may pay different wages to similar employees if doing so is for a bonafide factor such as education, training, or experience, but not sex. If an employer uses this exception to justify an employee’s lower wages, the employee will have an opportunity to show that the employer:
- Uses an employment practice that causes a disparate impact on the basis of sex,
- Could set a different practice that would serve the same purpose without causing a disparate impact, and
- Has refused to implement that practice.
Such a showing would disqualify the employer from using this exception to the fair pay law. If an employer is found to be in violation of these provisions, and has done so willfully, the employer will now be required to pay up to three times the amount of wages found to be owed to the employee.
Sex and Familial Status Discrimination Expansion
New York’s discrimination law currently applies to employers with at least four employees. The Women’s Equality Act changes that qualification in specific circumstances. When the discrimination is in regards to a person’s sex and is related to sexual harassment, the definition of “employer” is expanded to include all employers within the State, no matter how many employees work for that employer.
In addition to other protected classes, familial status may no longer be used by employers in making employment decisions. This further prevents employers from advertising vacant job positions if these advertisements directly or indirectly display an intent to use familial status as a factor in determining a candidate’s qualification, unless such discrimination is based on an actual bona fide occupation qualification.
Legal Remedies for Sex Discrimination Cases
New York law does not currently grant attorney’s fees in discrimination cases. Normally, each party in a lawsuit will be responsible for paying its own legal costs. However, the new law will give the court discretion to grant attorney’s fees to the prevailing party so long as the case is in regards to sex discrimination. If the employer is the party that wins the case, the burden is on the employer to show that the employee filed a frivolous claim before attorney’s fees will be awarded.
Increased Penalties for Labor Trafficking
Labor trafficking, currently a class D felony in New York, means to induce a person to engage in labor by fraudulently convincing the victim that the labor is to repay an owed debt, by confiscating the victim’s identification to impair his or her freedom of movement, by using force, or by instilling fear in the victim that failing to perform the labor will result in injury, property damage, accusation of a crime, or publication of a humiliating secret.
The Women’s Equality Act causes labor trafficking to become a violent class D felony. Further, it creates the crime of aggravated labor trafficking, in which a person compels a victim to engage in labor by providing unlawful controlled substances in order to impair the victim’s judgment. Aggravated labor trafficking will be a class C felony.
Pregnancy Accommodation Requirements
Employers are currently required to make reasonable accommodations to employees that have disabilities, so long as the accommodations do not impose an undue hardship on the employer. The new law expands on this requirement to also include accommodations for pregnancy-related conditions. This means any female employee who has a medical condition related to either pregnancy or childbirth that may inhibit her normal bodily function must be provided reasonable accommodations, so long as she is still able to fulfill her occupational duties in a reasonable manner.
Governor Cuomo has announced additional expansions of employment discrimination law. He has unveiled a plan to sign an executive order that would outlaw discrimination against transgender employees or candidates when making employment decisions. Human Resource managers should review policies to ensure compliance with the laws before they come into effect to avoid potential violations.