A Round-Up of Updates to New York’s Discrimination Laws and Efforts to Promote Equal Pay

A series of expanded workplace protections and revisions to both the Labor and the Human Rights laws over the past few weeks include actions designed to promote equal pay and expand protections against workplace discrimination.  For business owners, HR professionals, and supervisors, it’s critical to become familiar with these changes.

REDUCING THE GENDER WAGE GAP AND PROMOTING EQUAL PAY

Salary History Ban

The New York legislature passed and Governor Andrew Cuomo signed bills into law that prohibit employers from requesting that job applicants (whether external or internal) provide wage/salary history as a condition of employment or to be considered for a promotion. The purpose of the law is to tie wages and salaries to experience, qualifications, and job duties rather than to what a person was earning in their last job. Employers should make sure that they eliminate questions to pay history from any job applications or interview questionnaires. The law will go into effect on January 6, 2020.

The best way to comply with the law is to establish a salary range for a position before beginning the interview process, with a low and high end based on qualifications and experience. 

Equal Pay for Equal Work Revisions

Another new law expands an existing requirement that employees receive equal pay for “equal work.” The phrase "equal work" will be changed to “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” There remain some exceptions for paying different wages for substantially similar work based on factors including seniority, merit and quantity or quality of production. Other factors such as education, training, or experience are also permissible, provided that they are job related. Another bill expands these equal pay protections, which have been based on sex, to include additional protected classes: age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status. These changes take effect October 6, 2020.

HR One recommends that employers review the wages and salaries of employees in similar roles and establish the business related reasons for any disparities, or else take appropriate steps to align the pay for those employees doing substantially similar work. Reviewing the job descriptions for employees is a good place to start.

EXPANDING PROTECTIONS FROM WORKPLACE DISCRIMINATION

Hairstyle Protections

Employers need to be aware that the legislature has passed and Governor Cuomo has signed into law a protection for employees from discrimination based on hairstyles and traits associated with race, including braids, locks, and twists. Employers should be sure to review, and if necessary revise, their dress and grooming standards to reflect this change. This law took effect immediately when it was signed.

Overhaul of NYS Human Rights Law

Finally, in an effort to expand on the actions taken last year to reduce sexual harassment in the workplace, the legislature has passed a bill that would substantially change how employers respond to any harassment and discrimination claims. The bill has not yet been signed by Governor Cuomo, though he is expected to sign it in the coming days.

The legislation would:

• Expand the protections of the sexual harassment prevention law to encompass all protected classes in New York State and all forms of discrimination. This includes a prohibition on mandatory arbitration of discrimination claims and requiring employees to sign non-disclosure agreements regarding discrimination claims.
  
  
• The bill would also extend the time period an employee can file a claim with the New York State Division of Human Rights from one year to three years.
  
  
• It would also eliminate the provision of the Human Rights law that these protections apply only to employees in organizations with 4 or more employees.

However, perhaps the most substantial change made by the bill is to eliminate some of the key employer defenses against discrimination claims:

• First, the bill changes the standard that alleged harassment be “severe or pervasive” in order to be actionable to a standard that the allegation “rises above the level of discrimination that a reasonable victim of discrimination with the same protected characteristic would consider petty slights or inconvenience.”
  
  
• Second, employers are currently protected from claims when an employee fails to take advantage of their employer’s internal reporting process, but the legislation would effectively eliminate this affirmative defense.  This means that employees would no longer be required to follow internal complaint procedures, but can go straight to the Division of Human Rights with a complaint that could trigger an investigation, blindsiding an employer.

If the Governor signs these changes into law as expected the best action employers can take is to train their managers and supervisors on how to effectively reduce the possibility of discrimination claims by educating their teams on what is and isn’t appropriate workplace behavior.