On October 21, 2015, New York Governor Andrew Cuomo signed into law a series of bills that expands the state’s gender-based employment protections. The bills are part of a legislative package, known more commonly as the Women’s Equality Act, which Cuomo first introduced back in 2013 in an effort to combat perceived workplace sex discrimination, among other things. Each of the new laws, discussed in turn below, takes effect on January 19, 2016.

Expanded Equal Pay Protections

The first bill the governor signed comprises a series of four principal amendments to New York Labor Law (NYLL) section 194, which addresses gender-based pay disparities.

The first amendment narrows the conditions under which an employer may pay comparable male and female employees differently. Before the new amendments, NYLL section 194 provided:

No employee shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to a differential based on: (a) a seniority system; (b) a merit system; (c) a system which measures earnings by quantity or quality of production; or (d) any other factor other than sex.

The amendment supplants subsection (d) (“any factor other than sex”), with the following language: “a bona fide factor other than sex, such as education, training or experience.” The amendment goes on to provide that:

such factor: (i) shall not be based upon or derived from a sex-based differential in compensation and (ii) shall be job-related with respect to the position in question and shall be consistent with business necessity. Such exception [] shall not apply when the employee demonstrates (a) that an employer uses a particular employment practice that causes a disparate impact on the basis of sex, (b) that an alternative employment practice exists that would serve the same business purpose and not produce such differential, and (c) that the employer has refused to adopt such alternative practice.

All of the above makes it more difficult for companies to justify pay disparities between similarly situated male and female employees.
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