Hunton Employment & Labor Perspectives

On January 19, 2016, a series of bills in New York commonly known as the Women’s Equality Act will take effect. These laws are intended to help achieve pay equity, strengthen human trafficking laws and protections for domestic violence victims, and end pregnancy discrimination in all workplaces, by, among other things:

• Broadening the same establishment definition for a pay disparity analysis to include geographic locations within the same county;

• Setting up and clarifying the burden shifting paradigm for pay disparity cases;

• Requiring employers to show a “bona fide factor such as education, training or experience” that supports the difference in pay and to also show that such factor(s) is/are job related and consistent with business necessity;

• Permitting an employee to challenge the business necessity and non-sex based justifications provided by the employer for the pay disparity by proving: (1) the employer’s practice causes a disparate impact on the basis of sex; (2) a viable alternative practice exists that would both remove the wage differential and serve the same business purpose; and (3) the employer refused to adopt the alternative practice;

• Preventing employers from prohibiting an employee “from inquiring about, discussing or disclosing his/her wage or those of another employees;”

• Providing that, for willful violations of the state’s equal pay law, an aggrieved employee may recover liquidated damages equal to 300 percent of the unpaid wages owed to such employee;

• Amending the state’s anti-discrimination law to require that employers provide reasonable accommodations to employees because of a “pregnancy-related condition;”

• Adding “familial status” to the list of protected classes under the state’s anti-discrimination law;

• Allowing for the recovery of attorneys’ fees to “any prevailing party” in sex discrimination cases; and

• Providing that sexual harassment claims may be asserted against “all employers,” regardless of their size.

To prepare for these new laws, New York employers should review their obligations under the Women’s Equality Act and, in particular, their pay practices.