New York State Strengthens Harassment and Discrimination Laws: Part 2 of 2

This is a continuation of our prior blog that discusses the new workplace protections in New York.

1. Restricts Non-Disclosure Agreements.

In 2018, New York State law was amended to limit the use of Non-Disclosure Agreements in connection with the resolution of sexual harassment claims. This limitation now applies to the settlement of all discrimination, harassment and retaliation claims. Specifically, the law precludes the use of non-disclosure agreements that prohibit an individual from disclosing the facts and circumstances of a discrimination or harassment claim, unless: (i) the condition of confidentiality is in the complainant’s best interest; (ii) any such non-disclosure provision is the complainant’s preference and is written in plain English, and if applicable, the primary language of complainant.

2. Hair Discrimination.

The new legislation also prohibits employment discrimination based on religious attire, clothing or facial hair. The new law amends the New York State Human Rights Law to make clear that employers cannot refuse to hire, retain, promote, or take other discriminatory action against an individual for their attire, facial hair or displaying other physical traits (ex: hair texture and braids) in accordance with the tenets of their religion or race. Further, employers are prohibited from treating applicants or employees differently because of that person’s religious beliefs.

3. Salary History Ban.

New York State has also enacted laws prohibiting employers from inquiring about salary history during the process of considering an individual for a job. Employers must not:

a) Rely on an applicant’s wage or salary history in determining whether to offer employment or in determining the wage or salary for such individual.

b) Orally or in writing seek, request, or require an applicant or current employee’s wage or salary history as a condition to be interviewed, as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion.

c) Orally or in writing seek, request, or require an applicant or current employee’s wage or salary history from a current or former employer, current or former employee, or agent of the applicant or current employee’s current or former employer.

d) Refuse to interview, hire, promote, otherwise employ, or otherwise retaliate in any manner against an applicant or current employee (i) based on the individual’s prior wage or salary history; (ii) based on the individual’s refusal to provide wage or salary history information; or (iii) based on the filing of a complaint with the Division of Human Rights alleging a violation of this law.

4. Equal Pay protections expanded to all protected classes.

The new legislation also amends the equal pay provisions of the New York Labor Law (NYLL), which currently prohibits gender-based pay inequity, to apply to members of all protected classes under the NYSHRL. Under the new legislation, individuals who believe they are underpaid due to their protected status will be able to bring a claim for equal pay directly under the NYLL. The NYLL has a six-year statute of limitations, which is double the three-year statute of limitations applicable to claims under the NYSHRL, and also provides for triple damages.

Additionally, the new law lowers the burden of proof for an individual claiming an equal pay violation by requiring employers to ensure equal pay for “substantially similar work,” as opposed to “equal” work. However, the law permits a differential in rate of pay if the employer can show that such decision is based on (i) a seniority system, (ii) a merit system, (iii) a system measuring earnings by quantity or quality of production, or (iv) a bona fide factor other than the protected status, such as education, training or experience, which is job-related and consistent with business necessity.

If you have questions regarding discrimination, harassment or any other aspect of labor and employment law, feel free to contact Mitchell Schley at 732-325-0318 or mschley@schleylaw.com.