In recent months, New York has implemented several changes to its discrimination and sexual harassment law, many of which are effective in the coming month.
On July 10, 2019, Governor Cuomo signed into law the Pay Equity Law (S.5428-B / A.8093-A) which broadens the standard required of an employee, intern, or applicant to establish compensation discrimination under the New York Equal Pay Law. The most notable change to the Equal Pay Law is its inclusion of a lesser, alternative standard that a member of a protective class must show to succeed on an equal pay claim.
Under the new law, a complainant need only demonstrate that his or her job is “substantially similar” to the comparator’s job – rather than the current New York equal pay standard, which requires the complainant to show his or her job is “equal” to the comparator’s job. Thus, employers are advised to perform a review of the various jobs and the skills, efforts, and responsibilities of its employees to ensure that all workers who are “substantially similar” to one another are paid the same – i.e., not just merely due to job title. There are, of course, legitimate reasons set forth in the law that justify compensation differences, including “where payment is made pursuant to a differential based on: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a bona fide factor other than status within one or more protected class or classes, such as education, training, or experience.” Before the amendment, the Equal Pay Law in New York only protected wage discrimination based on the worker’s gender; it has now been expanded to all protected classification under the Human Rights Law. The Pay Equity Law is effective as of October 8, 2019.
Also on July 10, 2019, the Governor signed into law S.6549 / A.5308-B, commonly referred to as the New York Salary History Law, which prohibits inquiries into a job applicant’s or current employee’s salary or wage history. The law is effective as of January 6, 2020.
Two days later, on July 12, 2019, the Governor signed into law amendments to the Human Rights Law and Dignity for All Students Act (S.6209A / A.7797A) to make clear that discrimination based on race includes hairstyles or traits associated with race. Specifically, the law’s new subsections to the definitions of race now include “traits historically associated with race, including but not limited to hair texture and protective hairstyles.” Outside of California (SB 188), New York is now the second state to codify such racial discrimination standards, and New Jersey’s legislature is currently considering a similar bill (NJ A-5564).
Less than a month later, on August 9, 2019, the Governor signed into law further amendments to the Human Rights Law (S.04037 / A.4204), which prohibit employment discrimination based on religious attire, clothing, or facial hair, and prevent employers from refusing to hire, attain, promote, or take other discriminatory action against an individual for wearing attire or facial hair in accordance with tenets of their religion.
Most recently, on August 12, 2019, the Governor signed into law S.6577 / A.8421, which implements significant new workplace harassment protections into various New York laws, including the Human Rights Law. As detailed below, the law is set to phase in various sections over the course of the next year – but most of the changes take effect as early as October 11, 2019. The intent behind the law is clear, as it was enacted to “mak[e] it easier for workplace sexual harassment claims to be brought forward.”
Other principal changes to the Human Rights Law are listed below, along with a brief commentary regarding selected changes. Those changes to the Human Rights Law not effective until after October 11, 2019 are noted below.
By way of a reminder, New York employers are required to conduct sexual harassment training for all employees on or before October 9, 2019 and on an annual basis thereafter. The training has many required elements, as we detailed in our QuickStudies dated July 11, 2018 and again on September 6, 2018. Locke Lord has prepared training materials that can be tailored to individual clients, and developed a low-cost means for annual compliance.
On February 12, 2019, we reported on ten new employment laws in the 12 months in New York. With the new laws described above, added to those in 2018 and early 2019, New York has now become the most progressive state in the country in terms of anti-sexual harassment and discrimination. The burdens on employers - both large and small - have been significantly increased.
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