On January 19, 2016, the Women’s Equality Act became law in New York. What do these new sex-based discrimination laws do for you? The laws strengthen New York’s equal pay statute, expands protection for victims of sexual harassment, requires your employer to be flexible when you’re pregnant and need support, provides for the recovery of attorneys’ fees in sex-based employment discrimination cases, and the Women’s Equality Act prohibits discrimination based on your family status. Not too shabby.
Rights Expanded for Pregnant Employees
That’s big news. The New York State Human Rights Law (NYSHRL) which prohibits discrimination in employment throughout New York, now requires employers with 4 or more employees to “reasonably accommodate” you when you’re pregnant, unless it would create an “undue hardship” on your employer.
In plain English that means your pregnancy-related medical condition or limitation must be flexibly accommodated, like any other temporary disability must, unless, for just a few examples, your company can show that providing you with a chair to sit on occasionally would be a hardship on their business, or that allowing you more frequent bathroom breaks, or days off for sonogram appointments, or restrictions on lifting heavy objects, is too much of a hardship on your employer, but that’s not easy for the employer to prove.
Got Equal Pay? Until now, New York Law required that men and women must receive equal pay for equal work unless the employer could show that the difference in pay was based on: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; (d) or, any factor other than sex. It’s that last one, factor (d) that gave employers all kinds of cover and excuses to argue ridiculous non-gender based reasons why they can pay you less than a man performing the same job.
The new Equal Pay law amends the statute to strengthen the prohibitions against unequal pay and it makes it considerably easier to prove a violation. First, the employer can no longer rely on the “any factor other than sex” loophole to justify a difference in pay between a man and a woman doing the same job. Now, the employer must show that the difference is based on a “bona fide factor other than sex, such as education, training and experience,” and employers can no longer prohibit employees from sharing wage information with other employees. This will enable you to learn whether your co-worker who is doing the same job is being paid more than you just because he’s a boy. This is a big deal and will certainly make it easier to hold employers accountable for unequal pay.
And here’s the kicker. The new law increases the amount of recoverable damages from 100% of the amount of unpaid wages to 300%. So, women who were paid unequal wages will be entitled to recover up to three times the amount of unpaid wages. Now, that’s what I’m talking about. Real power to rectify rampant gender pay disparity.
Sexually Harassed by an Employer with Less than Four Employees? No Problem.
About 60% of New York’s private employers have fewer than four employees, and until now, the NYSHRL did not apply to employers with less than four employees, and that’s still true for all other claims of discrimination, except for claims of sexual harassment, which now only requires that one employee work for your company! The new law protects all employees from sexual harassment regardless of the size of the workplace. Even if you are the only employee, if you’re being sexually harassed, that’s now illegal sex discrimination in NY, and you can take action and do something about it.
Attorney’s Fees Are Now Available in Sex Discrimination Cases
New York law did not provide for an award of attorneys’ fees to a female employee who won her case in any kind of employment discrimination claim, before the Women’s Equality Act became law. Now, the new statute provides for an award of reasonable attorneys’ fees for successful sex discrimination claims, which is huge, because when a company knows that it may have to pay your lawyer after you win, it either makes them do the right thing in the first place to avoid losing in court, or it makes them want to settle with you sooner to avoid the risk of paying your legal fees after you prove your case in court, and, if your company is ordered to pay your legal fees, that puts more money into your pocket for the sexual harassment, abuse and suffering you endured.
Family Status Discrimination is Now Illegal in New York
The NYSHRL now includes a prohibition against discrimination in employment based on “familial status,” which basically means that non-traditional living arrangements including custody of children are now protected, but at heart this new law is designed to protects single mothers, women who will now be able to bring claims under state law alleging they were denied employment or a promotion, or were terminated or harassed because of their status as a single parent. Even though the law is gender neutral and protects men as well as women, as a practical matter it’s mostly women who are penalized for expecting or having children, so “familial status” discrimination is a welcome expansion of the NYSHRL.