Five New Laws for the New Year in New York

You probably have heard about the new minimum wage in New York but the media has not covered the five new discrimination laws going into effect January 19, 2016. The five laws address a variety of issues from pregnancy accommodation to attorneys’ fees for prevailing plaintiffs in sex discrimination cases. This article summarizes these five new laws and reviews other relevant legal information.
Accommodations for Pregnancy-Related Conditions: This law requires employers to reasonably accommodate a person with pregnancy-related or childbirth-related disabilities. Disability for these purposes is defined in terms of a medical condition related to pregnancy or childbirth which inhibits the exercise of a normal bodily function or is demonstrable by medically-accepted clinical or laboratory diagnostic techniques. However, the person needing the accommodation must still be able to perform her job. This law applies to employers with four or more employees.
Familial Status Discrimination: This new law prohibits employment discrimination based on “familial status” defined as:
(a) any person who is pregnant or has a child or is in the process of securing legal custody of any individual who has not attained the age of eighteen years, or

(b) one or more individuals (who have not attained the age of eighteen years) being domiciled with:

(1) a parent or another person having legal custody of such individual or individuals, or

(2) the designee of such parent.

Sexual Harassment: This new law expands coverage of New York sexual harassment laws to all employers no matter how small—even if just one employee.

Given this expanded coverage, a review of key elements of sexual harassment law is in order. Sexually harassing conduct can consist of unwanted verbal or physical sexual advances, sexually explicit statements, or discriminatory remarks that are offensive or objectionable to the recipient. Examples include:

Requests for sexual favors, which may be accompanied by implied or overt threats concerning one’s job performance evaluation or promotion.
Subtle or obvious pressure for unwelcome sexual activities.
Verbal harassment or abuse in the form of a pattern of sexual comments or questions.
Unnecessary or inappropriate physical contact.
Displays of lewd photographs or drawing.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute unlawful sexual harassment when:

submission to such conduct is made (either explicitly or implicitly) a term or condition of employment;
submission to, or rejection, of such conduct is used as a basis for decisions affecting one’s employment; or
such conduct has the purpose or effect of interfering with an individual’s work performance, or creating an intimidating, hostile or offensive working environment.

As courts have interpreted harassment laws, two key concepts are clear. First, the critical issue is whether the conduct or comments are welcome to the recipient or others hearing or experiencing the harassing conduct. Generally, the intent of the person engaging in the conduct or making the comments is irrelevant but rather the key issue is the impact on the recipient or others hearing or experiencing the harassing conduct. Second, although an isolated instance typically does not result in liability, an employer should respond to an isolated instance. The response depends on the results of a neutral and independent investigation of the complaint. Generally, however, the employer should remedy any harm to the complainant and prevent any further harassment in the workplace.

Fair Pay and “Pay Transparency”: This law adds a number of protections for employees in New York, including: (1) prohibiting employers from discriminating against an employee who inquires about, discusses or discloses his/her wages or the wages of another employee; and (2) narrowing the exceptions available to employers that prohibits differentials in rate of pay due to sex.

This new law goes well beyond the federal equal pay laws. Critically, this law requires employers to pay employees working in jobs that are “dominated by employees of a particular sex, race or national origin” to be paid the same as employees working in jobs or occupations that are dissimilar but whose requirements are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions. This law applies to all employers in New York regardless of the number of employees.

Collection of Attorney’s Fees By Successful Plaintiffs: This new law allows plaintiffs to recover attorneys’ fees where an employer is found liable for committing an unlawful discriminatory practice in employment or credit discrimination cases involving sex.

This law changes the game: plaintiff lawyers will now have an incentive to take cases to trial and prevail—if only a dollar–as then the employer must pay their attorney fees.

In conclusion, these new laws impact all employers in New York and the need to comply is immediate. Give us a call regarding steps you should take now to meet these new requirements.

By: Cynthia Maxwell Curtin, Esq., of counsel with Curtin & DeJoseph, PC; 315-530-8745; ccurtin@curtinlawpc.com.

Originally published by Affinity HR Group.