Sex and Gender Discrimination
What is Sex and Gender Discrimination?
Sex and Gender Discrimination laws are to stop Employers from treating Employees differently because the Employee is a man or a woman. An Employer is required by law to treat Employees equally in all aspects of employment, including, pay, fringe benefits, hiring, promotions, job assignments and training opportunities. Layoffs and/or firing practices should also be applied in substantially the same way as between men and women. Sexual Harassment, Pregnancy Discrimination and LGBT issues also come under the general umbrella of Sex and Gender Discrimination, but each of these have become separate topics in their own right, so different sections are devoted to them in this site.
Does the Equal Pay Act Have Any Teeth?
The Answer is Definitely Yes – Liquidated Damages of up to 300% of the amount of the actual wage violation are now available under the New York State law. This means that if $100,000 of unequal wages are proven within the six years before the filing of the complaint, the Court can award up to $300,000 in liquidated damages (which is basically a fine), plus the actual $100,000 damages, if the violation is found to be willful. This is a possible recovery of 400% plus reasonable attorney’s fees. This is a powerful change that will make Employers far more likely to settle these claims.
What Do We Have to Prove to Win an Equal Pay Case?
A basic case is made out by showing that a woman is paid less than a man in the same establishment, for equal work, under similar working conditions, on a job requiring equal skill, effort and responsibility.
Under the new amendments to the state law, this is a violation, unless the Employer can show that the difference in pay is the result of seniority, a merit system, a system that sets earnings by quality or quantity of production (like a commission system), or a bona fide factor other than sex, such as education, training or experience. This factor (i) cannot be based upon or derived from a sex-based differential in compensation, and (ii) must be job related to the position in question and must be consistent with business necessity.
Why Is This New Rule Important?
Under the old law, an Employer could defend by showing that the differential was based on any “factor other than sex”. The New Rule has been designed to take away many of the excuses that Employers had been using successfully to defend unequal pay claims. This places much stricter limits on what the “factor other than sex” can be. This now forces the Employer to show real business justification for pay differentials between men and women, or to give the woman equal back pay and liquidated damages. If the pay is different, it has to be justified by real considerations that are equally applied across the board, and that are directly related to the job in question.
Am I Allowed to Discuss My Earnings with Other Workers or Ask Them About Theirs?
Now you are, but under prior law, Employers were allowed to discipline or fire any Employee who inquired about, or talked about, his or her wages, or the wages of any other employee. This is important because women won’t know if they have an equal pay claim where discussion of wages in the workplace is strictly prohibited. Remember that even though Employers are not allowed to discipline or fire anyone for showing interest in wage differences between men and women, many will still find ways to do this. Before you do anything that will jeopardize your position, you should always seek legal advice so you can take precautions that will give you the most protection possible if a problem arises.
Do These Laws Provide any Protection for Single Mothers?
The Answer is Definitely Yes. One of the specific changes in recent laws was to protect discrimination based on “Familial Status”. This effectively created a new “protected class”, which was primarily intended to protect single mothers. The law is written very broadly to protect people who are caring for children under 18 and their significant others, even if neither of them are the biological parent. This law intended to protect women with children because they are “less likely to be recommended for hire and promoted, and, in most cases, are offered less in salary than similarly situated men”.
Do Sex and Gender Discrimination Laws Cover Things Beyond Equal Pay?
Yes – Here are Some Examples:
- Consistently passing an employee over for promotion despite a history of good performance reviews – the “glass ceiling” for women;
- The regular enforcement of certain rules against women which are usually not enforced against men;
- Regularly granting certain privileges to men which are often denied to women;
- Giving benefits to wives of male employees but not to husbands of employees who are women;
Can These Laws Ever Give Any Protection to Men?
Yes – Routinely granting leave to pregnant women to give birth, but denying it to men whose wives are giving birth also violates the Sex Discrimination Laws. Remember – What’s good for the goose is good for the gander.
If You Feel that You Have Been a Victim of Discrimination that violates these or any other Discrimination Laws, call The Law Offices of William Cafaro for a free consultation at 212-583-7400.
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