November 25, 2015 NYS Women’s Equality Legislation
KEEPING YOU INFORMED…
The Governor recently signed into law several bills designed to, among other things, protect and further women’s equality in the workplace. To accomplish this goal, the new legislation aims to help women achieve pay equality (S.1/A.6075), protect all employees from sexual harassment in the workplace (S.2/A.5360), remove barriers to remedying sex-based employment discrimination (S.3/A.7189), eliminate employment discrimination based upon familial status (S.4/A.7317) and provide additional protections in the workplace for women with pregnancy-related conditions (S.8/A.4272).
Amendments to Labor Law § 194 (Pay Equality)
Labor Law Section 194 generally prohibits private-sector employers from paying women less than men for performing the same work. The statute includes an exception to the general rule that has been narrowed by the recently adopted legislation. Specifically, a difference is permissible where there is a “bona fide factor other than sex, such as education, training, or experience,” but that the factor cannot be derived from a “sex-based differential,” and must both be “job-related with respect to the position” and “consistent with a business necessity.” The legislation further provides that this exception does not apply when: (1) the factor or employment practice results in a disparate impact on the basis of sex; (2) another employment practice exists that would serve the same business purpose and not result in a disparate impact; and (3) the employer has refused to adopt the different employment practice. The legislation increases the amount of liquidated damages that an employer may be assessed for a willful violation of Section 194 from 100% to 300% of the monies due for underpayments.
The legislation further amends Section 194 to prohibit employers from preventing employees from discussing their wages with one another. An employer may, however, establish a written policy establishing “reasonable workplace and workday limitations on the time, place and manner for discussing wages.”
Amendments to the Executive Law (Sexual Harassment and Discrimination)
Executive Law Section 292 protects employees from sexual harassment in the workplace. The recently adopted legislation expands the definition of “employer” to include all employers, regardless of size. Previously, employers with less than four employees were exempt.
The legislation further amends Section 292, along with Section 296, to require an employer to engage in a “reasonable accommodation analysis” with any employee who has a “pregnancy-related condition,” which is defined 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,” but that, upon providing a reasonable accommodation, does not prevent the employee “from performing in a reasonable manner the activities involved in the job or occupations sought or held.” The amendments further require an employee to provide her employer with medical or other information necessary to verify the existence of a disability or “pregnancy-related condition” or for consideration of a reasonable accommodation.
Executive Law Section 296 has been further amended to prohibit employers, licensing agencies, employment agencies and labor organizations from discriminating against employees on the basis of their familial status; e.g., for being a single parent or guardian of children. Prior to the legislation’s adoption, discrimination on the basis of familial status was only prohibited in the context of housing and credit applications.
Executive Law Section 297 has been amended to permit prevailing parties in sex-based employment and credit discrimination cases to be awarded “reasonable attorneys’ fees.” For an employer to recover attorneys’ fees, it must demonstrate that the employee’s claim was frivolous.
We recommend that you review and, if needed, update your policies to reflect these changes in the law. If you require assistance with this process or have questions regarding this legislation, please contact us.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2015
 In addition to these bills, the Governor also signed into law bills that protect victims of domestic violence from housing discrimination (S.5/A.6354-B), strengthen order-of-protection laws for victims of domestic violence (S.6/A.6262), and strengthen human trafficking laws (S.7/A.506).