On October 21, 2015, New York State Governor Andrew M. Cuomo signed into law five bills which, effective January 19, 2016, and by means of amendments to existing laws, increase protections for employees against gender discrimination. Among other things, these five bills (collectively, the “New York Women’s Equality Agenda,” the “Women’s Equality Agenda,” or the “NYWEA”) authorize awards of treble damages in lawsuits for unequal pay because of sex, ban sexual harassment by small employers, authorize awards of attorneys’ fees in lawsuits for sex discrimination in employment, prohibit discrimination in employment because of familial status, and require employers reasonably to accommodate workers who are pregnant.
The following is a summary of the five bills that comprise the NYWEA (titles are this author’s):
1. Prohibition of Differential Pay Because of Sex (Assembly Bill 6075 / Senate Bill 1): This bill increases, from 100 percent of the wages owed to 300 percent of the wages owed, the liquidated damages for willful violations by employers of New York’s equal pay law, N.Y. Lab. Law § 194.
The new law changes one of the exceptions to equal pay for male and female employees from “any other factor other sex” to “a bona fide factor other than sex, such as education, training, or experience.” The bill specifies that such bona fide factors may not be based on or derived from a sex-based differential in compensation, must be job-related with respect to the involved position, and must be consistent with “business necessity.” The new law defines “business necessity” as a factor that bears a manifest relationship to the involved employment.
The bill bars employers from prohibiting workers from inquiring about, discussing, or disclosing their wages or the wages of other workers.
2. Sexual Harassment by Small Employers (Assembly Bill 5360 / Senate Bill 2): This bill amends the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 (the “State Human Rights Law” or the “NYSHRL”) by rendering it an unlawful discriminatory practice for employers with one to three employees to sexually harass their employees. Previously, The State Human Rights Law had only rendered it unlawful for employers with four or more employees to sexual harass those workers.
3. Awards of Attorneys’ Fees in Lawsuits for Gender Discrimination in Employment (Assembly Bill 7189 / Senate Bill 3): This bill empowers courts, in their discretion, to award reasonable attorneys’ fees to prevailing employees in lawsuits brought under the State Human Rights Law for sex discrimination in employment.
The bill also authorizes courts, in their discretion and on the prevailing employer’s motion, to award reasonable attorneys’ fees to prevailing employers in lawsuits brought under the NYSHRL for gender discrimination in employment. However, to recover such reasonable attorneys’ fees, the prevailing employer must demonstrate that the employee’s lawsuit was frivolous.
4. Unlawful Discriminatory Practices Because of Familial Status (Assembly Bill 7317 / Senate Bill 4): This bill, which amends the State Human Rights Law, forbids employers with four or more employees from discharging from employment or refusing to employ an individual, and from discriminating against a person in compensation or in terms, conditions or privileges of employment, because of the individual’s “familial status.”
For purposes of the NYSHRL, the term “familial status” means:
a. any person who is pregnant or has a child or is 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:
(i) a parent or another person having legal custody of such individual or individuals, or
(ii) the designee of such parent.
The sponsor’s memorandum in support of this bill states that the bill is intended to shield, from discrimination in employment, “women with children.” However, the new law reaches beyond this intended purpose. Specifically, the bill protects, from discrimination in employment, both women and men with children and both women and men who are in the process of obtaining custody of a child.
5. Reasonable Accommodations for Pregnant Workers (Assembly Bill 4272 / Senate Bill 5): This bill, which amends the NYSHRL, requires employers with four or more employees reasonably to accommodate employees or job applicants with a “pregnancy-related condition.” The new law defines a “pregnancy-related condition,” in relevant part, as “a medical condition related to pregnancy or childbirth that inhibits the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”
The bill further states, however, that, in the context of employment, a pregnancy-related condition is limited to conditions which, on the provision of reasonable accommodations, do not prevent the employee or job applicant from performing in a reasonable manner the activities involved in the job held or sought.
The sponsor’s memorandum in support of this bill suggests, as examples of reasonable accommodations for workers or job applicants with a pregnancy-related condition, the following: “a stool to sit on, extra restroom breaks, transfer away from hazardous duties, a temporary reprieve from heavy lifting, or a reasonable time for childbirth recovery.”
Take-Aways for Employers
The Women’s Equality Agenda, by authorize awards of treble damages in lawsuits for unequal pay because of sex, significantly increases employees’ and plaintiffs’ attorneys’ incentives to bring lawsuits for differential pay because of sex. Consequently, employers in New York State should review their pay practices to ensure that pay differentials are truly caused by something other than sex, are related to job performance, and are consistent with business necessity.
Businesses with one to three employees in New York State should have an updated sexual harassment policy that has been reviewed by counsel; should periodically distribute the policy to all employees; and should train supervisors and managers about their obligations regarding sexual harassment complaints and investigations.
Employers in New York State must review and modify their present workplace policies, employee handbooks, and job advertisements to make clear that the employers do not discriminate in hiring, compensation, or the terms and conditions of employment based on an applicant’s or an employee’s familial status. So, too, employers in the Empire State should train supervisors and managers concerning the employer’s and the trainees’ obligations not to base employment decisions on a worker’s or a job applicant’s familial status.