New York State Expands Workplace Protections for Women

Paula Lopez, February 9, 2016.

The Women’s Equality Act (“WEA”) went into effect on January 19, 2016.  The WEA is a combination of five bills signed into law by Governor Cuomo on October 21, 2015.  The various provisions are intended to serve as a comprehensive means for protecting women’s rights in the workplace and affording enhanced remedies for plaintiffs who prevail in litigation brought for violations of the law. The key employment-related provisions of the WEA amend New York’s Labor Law (NYLL) and Human Rights Law (NYSHRL) and expand coverage of the state’s anti-sexual harassment laws to employers of all sizes, large and small.

Changes to New York’s Labor Law

WEA amends New York’s Labor Law by making it harder for employers to defend against pay discrepancies between men and women performing equal work.  Prior to enactment of the WEA, New York’s Labor Law required equal pay to men and women for equal work unless an employer could show that that the pay discrepancy was based on: (a) a seniority system, (b) merit system; (c) a system that measures earnings by quantity or quality of production; or (d) any factor other than sex. The WEA amends NYLL § 194 to replace the exemption that an employer can claim under subsection (d) (“any factor other than sex”) with an exemption that requires a showing of a “bona fide factor other than sex, such as education, training, or experience.”  This change imposed a greater burden on the employer to demonstrate that the wage differential is job-related and required by business necessity. “Business necessity” is defined as “a factor that bears a manifest relationship to the employment in question.”

Under the amendment, an employee can overcome an employer’s claim to an exemption by demonstrating that: (A) an employer uses a particular employment practice that causes a disparate impact on the basis of sex, (B) that an alternative employment practice exists that would serve the same business purpose and not produce such differential, and (C) that the employer has refused to adopt such alternative practice. Therefore, an employer bears a much higher burden in justifying pay discrepancies and should review its compensation policies and records to ensure that it is in compliance with the law. If an employer maintains a compensation structure that results in a pay discrepancy, it must be based on a “bona fide factor other than sex.”

The WEA also prohibits an employer from restricting any employee from “inquiring about, discussing, or disclosing the wages of such employee or another employee.”  However, an employer can establish and circulate a written policy that imposes reasonable restrictions on the time, place and manner by which employees can make wage related inquiries.  The WEA further amends NYLL § 198 by tripling the amount of liquidated damages that can be awarded for willful violations of NYLL § 194 from 100% of total wages due to up to 300% of the total amount of due.

By limiting the circumstances under which an employer can defend differences in compensation and making it easier for employees to obtain wage information, the WEA, while affording important protections to women, could result in businesses facing an increase in litigation.  Therefore, it is important for New York businesses to assess their compensation practices and comply with the law, especially, in light of the new liquidated damages provision.

Changes to New York’s Human Rights Law  

The WEA also results in significant changes to New York’s Human Rights Law.  The WEA amends NYSHRL § 292 (5) by expanding the scope of employers subject to sexual harassment claims from any employer with four or more employees to an employer of any size. Therefore, small business that were previously not covered by New York’s Human Rights law are now exposed to potential sexual harassment claims and should implement sexual harassment policies and internal procedures for handling such complaints, as well as train management on the new law.

Additionally, the WEA amends NYSHRL § 296 to include “familial status” as a protected classification and prohibit discrimination in employment based on such status.  “Familial status” is defined in NYSHRL § 292 (26) as “(a) any person who is pregnant or has a child or in in the process of securing legal custody of any individual who has not attained the age of eighteen years, or (b) one or more individuals (who have not attained the age of eighteen years) being domiciled with: (1) a parent or another person having legal custody of such individual or individuals, or (2) the designee of such parent.”

A further change brought on by the WEA is the amendment of NYSHRL § 296, which expressly 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.  The amendment to the NYSHRL will bring state law in line with existing New York City law, requiring employers to provide reasonable accommodated for pregnancy-related conditions. Additionally, the amendment creates an express requirement that an employee cooperate in providing medical or other information requested by the employer to verify the existence of a disability or pregnancy-related condition.

The WEA also amends NYSHRL § 297 so as to permit a prevailing party to recovery attorneys’ fees in sex discrimination cases. However, if the employer is the prevailing party, attorneys’ fees will only be awarded upon motion and a showing that the claim brought was frivolous.

It is important for New York businesses to ensure that their existing policies are in compliance with the changes to NYLL and NYSHRL brought about by the WEA. In eliminating the four employee threshold and exposing employers of all sizes to sexual harassment claims, there will likely be a spike in sexual harassment claims filed against small business—not previously covered by the NYSHRL.  Therefore, it is especially important for businesses, of all sizes, to implement a sexual harassment policy and train its employees on its implementation.