In 2013, Governor Cuomo proposed multiple pieces of legislation, dubbed the Women’s Equality Act (“WEA”), to protect and further women’s equality in New York state. The legislation has been signed and became effective last week. For employers, the new legislation addresses key employment issues and will undoubtedly require employers to revisit their policies and practices.
Pay Equity (S. 1/ A. 6075): The WEA amends New York Labor Law Section 194 to eliminate an employer’s ability to point to “any factor other than sex” to justify pay disparities, and instead now requires that pay decisions be based on a “bona fide factor other than sex,” such as education, training, and experience. Previously, the Labor Law, which mirrored the Equal Pay Act, provided that individuals must receive equal pay for equal work unless the employer could show that the differential was based on:
a. a seniority system;
b. a merit system;
c. a system that measures earnings by quantity or quality of production; or
d. any factor other than sex.
The amendment requires that the deletion of subpart d and the new “bona fide” factor meet two requirements: (1) it cannot be based on or derived from a sex-based differential in compensation; and (2) it must be job-related with respect to the position in question and consistent with “business necessity” – which is defined as a factor that bears a manifest relationship to the employment in question.
The amendment also importantly does not allow employers to prohibit their employees from inquiring about, discussing, or disclosing their wages. Employers may, via a written policy provided to all employees, establish reasonable workplace and workday limitations on the time, place, and manner for inquiries about, discussion of, and the disclosure of wages. But the policy has to be consistent with all other state and federal laws and the standard promulgated by the Commissioner of Labor.
Together, the pay equity amendments could result in additional pay disparity claims, where the standard is now inevitably higher for employers seeking to justify pay differences. Employers should take this opportunity to review their compensation statistics and ensure they are able to point to a “bona fide factor” to explain any differences. Employers are also cautioned to take a look at their handbooks, compensation agreements, and other policies to ensure they are not unlawfully restricting employees’ rights to discuss their wages – a position recently advocated by the federal National Labor Relations Board.
Discrimination in Employment Based on Familial Status (S. 4/ A. 7317): The WEA also amends the New York State Human Rights Law (“NYSHRL”) Section 292 to include “familial status” as a protected classification. “Familial status” means (1) any person who is pregnant or has a child or is in the process of securing legal custody of a child less than 18 years old, or (2) at least one person under the age of 18 being domiciled with a parent or another person having legal custody or the designee of such parent. This new amendment prohibits employers from discriminating against employees on the basis of their familial status. New York employers should update their written policies and train managers on this new protected classification.
Reasonable Accommodations for Pregnant Employees (S. 8/ A. 4272): New York City already requires employers to provide reasonable accommodations to pregnant employees for pregnancy, childbirth, and related medical conditions, unless the employer can prove that the accommodation would cause an undue hardship. But under the newly amended NYSHRL Section 292, the WEA now requires employers to perform a reasonable accommodation analysis for employees with pregnancy-related conditions and to provide a reasonable accommodation, unless it would create an undue hardship. In other words, the NYSHRL has been amended to mirror the New York City Human Rights Law (NYCHRL) pregnancy accommodation regulations, which first became effective January 30, 2014.
Sexual Harassment (S. 2/ A. 5360): The WEA has amended NYSHRL Section 292 in a third way, extending its prohibition of sexual harassment to all employers, regardless of size. Prior to the amendment, the law applied to employers with four or more employees. Now, sexual harassment protections under the NYSHRL will apply to every single New York employer. Employers with fewer than four employees are now advised to put into place sexual harassment policies and effective complaint procedures as well as to train managers on the new law.
Recovery of Attorneys’ Fees (NY Bill A7189): Finally, the WEA amends the NYSHRL to now permit the recovery of attorneys’ fees in sex discrimination cases brought under the state law. The governor’s office describes this amendment as removing the barriers to remedying discrimination.