On October 21, 2015, New York Governor Andrew Cuomo signed into law a number of bills, which cumulatively expand protections against gender discrimination, sexual harassment, domestic violence, and human trafficking. This comprehensive legislation, which grew out of the governor’s call for a 10-point “Women’s Equality Agenda” in his 2013 State of the State Address, consists of eight discrete bills. Five of the newly signed bills are of particular importance to employers in that they seek to achieve greater pay equity for women; expand coverage of sexual harassment protections to the smallest employers and significantly increase remedies available under state sex discrimination law; prohibit discrimination based on family status; and mandate employers of pregnant employees to provide certain reasonable accommodations. In introducing the sweeping legislation, Cuomo stated, “This State has a legacy of leading the way in advancing equal rights – and today, we are making New York a model of equality for women.” According to Senator Catherine Young, “New York State has always been the ‘State of Opportunity,’ and with these new laws will ensure that opportunities are protected for women just as much as they are for men.”
The following provides an overview of the laws directly impacting employers in New York State:
- Pay Equity (S. 1 / A. 6075): This bill amends the state’s current equal pay law (N.Y. Labor Law Sec. 194). The bill addresses a perceived vagueness in the current law by amending one of the exceptions to achieving pay from “any other factor other than 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 upon a sex-based differential in compensation and must be job-related and consistent with business necessity; further, the exception is unavailable where it can be shown that the employer’s practice causes a disparate impact on the basis of sex, and the employer specifically rejected an alternative practice that would have served the business purpose without causing such impact. The new law also eliminates a perceived loophole in Section 194 that permits employers to forbid employees from discussing wages with each other under threat of discipline. The bill also added liquidated-damages liability of up to 300 percent of the total amount of wages found to be due, which is an increase from 100 percent in the prior version of the law. These amendments will become effective on January 19, 2016.
- Sexual Harassment (S. 2 / A. 5360): This bill amends the N.Y. Executive Law by specifying that in the case of sex harassment only, all New York employers are covered by the state Human Rights Law, regardless of the size of their workforce. Previously, employers with fewer than four employees were exempt from coverage under the Human Rights Law. This law will become effective on January 19, 2016.
- Remedies for Employment Discrimination (S. 3 / A. 7189): This bill amends the state’s Human Rights Law by permitting awards of attorneys’ fees to prevailing plaintiffs in sex-based employment discrimination cases. Previously, fee awards were not available under the state Human Rights Law (although they have been available under relevant federal law, i.e., Title VII of the Civil Rights Act and certain local laws, including the New York City Human Rights Law). Even with the signing of this bill, the state Human Rights Law continues to prohibit fee awards in discrimination cases brought with regard to other protected categories. This law will become effective on January 19, 2016.
- Familial Status Discrimination (S. 4 / A. 7317): This legislation adds familial status as a protected category under the state Human Rights Law (as well as under other laws not related to employment). This law will become effective on January 19, 2016.
- Reasonable Accommodations for Pregnant Employees (S. 8 / A. 4272): This bill amends existing law by requiring employers to provide reasonable accommodations to any employee with 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,” so long as the employee can perform her job in a “reasonable manner” upon receiving the accommodation. The bill specifically expands the definition of protected characteristics beyond “known disabilities” to include “pregnancy-related conditions,” and requires that such conditions be treated as temporary disabilities under the law. The law further specifies that the employee must cooperate in providing medical or other information necessary to verify the existence of a pregnancy-related condition for consideration of the accommodation. The employee’s medical information should be kept confidential. This law will become effective on January 19, 2016.
In addition, after numerous failed attempts to pass legislation, at an October 22, 2015, event held by the Empire State Pride Agenda, Governor Cuomo announced that he would exercise his executive authority by instructing the New York State Division of Human Rights to issue regulations protecting employees from discrimination based on gender identity, transgender status, and gender dysphoria under the state’s Human Rights Law (with gender dysphoria being protected as a disability). In a subsequent news release, the governor’s office announced its plan to make New York the first state to protect transgender individuals against discrimination by both private and public employers.
Prior to this executive order, discrimination against transgender individuals had been prohibited in New York State by executive order since 2009, but only as to state workers. In a statement, Cuomo declared, “The scourge of harassment and discrimination against transgender individuals is well-known—and has also gone largely unanswered for too long. . . . We will not tolerate discrimination or harassment against transgender people anywhere in the State of New York—period.” The regulations are anticipated to be published shortly, and will be subject to a 45-day comment period before taking effect.