Anthony A. Mingione and Gregory P. Cronin
As part of the New York State Legislature’s push to pass legislation at the end of its 2019 Session, three anti-discrimination bills have been passed and sent to the governor for consideration. If signed into law by Governor Cuomo (as expected), the bills will: (i) prohibit employers from inquiring into job applicants’ wage or salary history; (ii) expand the protections of existing equal pay laws; and (iii) ban discrimination based on hair or hairstyle. The salary history ban and equal pay law amendments will go into effect 180 days after enactment, and the hair/hairstyle law will go into effect immediately upon signature.
Wage and Salary History
Mirroring a ban already in effect in New York City, New York State’s proposed new wage and salary inquiry ban will prohibit employers from requiring, requesting, or seeking, (whether orally or in writing) an applicant or current employee’s wage or salary history, or making the provision of such information a condition of employment. Employers will also be prohibited from relying on an applicant’s or current employee’s wage or salary history when determining the wage or salary for that individual, and from refusing to interview, hire, promote, or otherwise employ any individual based on wage or salary history.
This ban does not stop applicants from voluntarily providing such information and allows employers to confirm wage or salary history if, at the time an employment and compensation offer is made, the applicant or employee responds by providing a salary history. Also, unlike the similar ban under New York City Law, New York State’s new wage and salary inquiry ban does not prohibit employers from conducting a search of publicly available records to determine an applicant’s wage or salary history. Of course, employers should be wary as the concept of when and whether such information is “voluntarily” provided may very well lead to legal battles.
Equal Pay for Protected Class Status
This new pay differential law will expand the current gender-based protections to guard against pay inequality for members of certain protected classes. These protected classes include: age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.
Existing equal pay laws require plaintiffs to show that they are performing “equal work,” but the proposed new law will require only a showing of “substantially similar work … under similar working conditions.” Lowering the bar for plaintiffs (and their lawyers) will undoubtedly encourage more lawsuits to test the bounds of the new law. Pay differentials based on systems of seniority, merit, earnings by quantity or quality of production, education, training, or experience will be permitted, provided that those systems do not have a disparate impact on members of a protected group.
Race Discrimination Based on Hair or Hairstyle
Finally, again mirroring anti-discrimination laws already in effect in New York City, New York State has amended the definition of “race” to include ancestry, color, ethnic group identification, and ethnic background, and to include traits historically associated with race, including hair texture and certain hairstyles. This legislation will prohibit discrimination based on natural hair or hairstyles, and protect people’s right to maintain their hair, treated or untreated, uncut or untrimmed, in hairstyles of their choosing.
New York State is keeping up with and sometimes surpassing New York City in terms of ramping up employee protections. All employers with employees in New York State (and New York City) should continue to look out for new developments in this area, as this trend shows no signs of slowing down.
We will continue to monitor these issues, especially with the EEO-1 pay data submission deadline creeping closer—don’t be surprised if pay equity claims and lawsuits are the hot issue for the 2020s.