NY moves to Strengthen Anti-Discrimination Laws
For those of you in New York who want to get back at your HR person this morning, give her this morning’s blog before she’s had her first cup of coffee. It sounds like a bigger deal than it is, but only time will tell.
The Legislature yesterday sent the Governor three bills expanding state level protections against employment discrimination. Assuming that the Governor wants to remain Governor and signs this legislation these new laws will be in effect 90 days after he signs them. They clarify New York’s current law banning wage discrimination on the basis of sex; outlaw discrimination based on “familial status,” and extend New York’s ban against sexual harassment to all work places, regardless of how few employees they have.
New York law currently authorizes wage determinations to be made on “any other factor other than sex.” The legislation, S.1 (Savino)/A.6075 (Titus) clarifies this standard. It provides that a “bona fide factor” to determine wages can be used only if it is related to the position in question and is “consistent with business necessity.” Furthermore, if a factor has a disparate impact on the wages based on sex, and there are less discriminatory criteria available then the employer is also liable for wage discrimination. It authorizes damages equal to three times the amount of back wages owed so it further incentivizes pay wage lawsuits. The bill’s language closely tracks standards that have already been imposed by the federal courts interpreting the Civil Rights Act
But wait; there’s more: Employers can’t prohibit employees from inquiring about, discussing, or disclosing wage information. The bill does not create an affirmative obligation to provide wage information to your employees but prohibits you from refusing to provide this information if it is requested. Believe it or not, this provision is consistent with existing law as interpreted by the NLRB, which is out to extend union protections to every employee in America whether or not they want them.
S4 (Little/Russell) makes it illegal for employers to discriminate against someone because of their Familial status. The sponsors argue that the bill is necessary because “Women with children are less likely to be recommended for hire and promoted, and, in most cases, are offered less in salary than similarly situated men.”
S2 (Valesky/Galef) extends New York’s law banning sexual harassment to all employers. Currently, employers can be sued for sexual harassment under section 296 of the Executive law if they have four or more employees.
Now don’t break into HR induced hives, at least in the short-term. Many of these new prohibitions track federal law and are narrow enough to easily integrate into the existing policies I know you all have. The longer term impact remains to be seen. New laws mean new lawsuits with new interpretations. Over time, New York employers will have less flexibility in making hiring and promotion decisions than their counterparts in other states.
Now if you’ll excuse me, I want to start reading “How Good Do You Want to Be: A Champion’s Tips on How to Lead and Succeed at Work and in Life,” by my favorite college coach, Nick Saban of the Alabama Crimson Tide.