Establishes the "Women's Equality Act"; relates to prohibition of differential pay because of sex (part A); relates to unlawful discriminatory practices (part B); provides for attorney's credit discrimination (part C); relates to the unlawful discriminatory practice because of familial status (part D); relates to domestic violence victim status and lawful source of income (part E); relates to the duties of interpreters appointed by the courts in certain cases (part F); relates to establishing a pilot program for the filing of petitions for temporary orders of protection by electronic means and for issuance of such orders ex parte by audio-visual means (part G); relates to prostitution in a school zone; enacts the trafficking victims protection and justice act (part H); relates to reasonable accommodation (part I); and relates to access to reproductive services (part J).
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8070
SPONSOR: Titus (MS) TITLE OF BILL: An act to amend the labor law, in relation to the
prohibition of differential pay because of sex (Part A); to amend the
executive law, in relation to unlawful discriminatory practices (Part
B); to amend the executive law, in relation to the provision of attor-
ney's fees in cases of housing, employment or credit discrimination; to
amend the executive law, in relation to the awarding of reasonable
attorney's fees (Part C); to amend the executive law in relation to the
unlawful discriminatory practice because of familial status (Part D); to
amend the real property law and the real property actions and
proceedings law, in relation to prohibiting discrimination in housing
based upon domestic violence status and establishing a task force to
study the impact of source of income on access to housing (Part E); to
amend the domestic relations law, the family court act and the criminal
procedure law, in relation to the scope of orders of protection and
temporary orders of protection (Part F); to amend the family court act
and the judiciary law, in relation to establishing a pilot program for
the filing of petitions for temporary orders of protection by electronic
means and for issuance of such orders ex parte by audio-visual means and
to amend the executive law, in relation to review and reports by the
chief administrator of the courts (Part G); to amend the penal law, the
criminal procedure law, the social services law, the civil practice law
and rules, the mental hygiene law, the correction law, the vehicle and
traffic law, the public health law, the real property actions and
proceedings law, and the real property law, in relation to enacting the
"trafficking victims protection and justice act"; to amend the penal
law, in relation to prostitution in a school zone; to amend chapter 74
of the laws of 2007 amending the penal law, the criminal procedure law,
the correction law, the social services law, and the executive law
relating to human trafficking, in relation to extending the interagency
task force on human trafficking for four years; and to amend the execu-
tive law, in relation to human trafficking awareness (Part H); to amend
the executive law, in relation to reasonable accommodation (Part I); and
to amend the public health law, in relation to access to reproductive
services (Part J)
Purpose:
This bill would enact the Women's Equality Act, which would break down
barriers that perpetuate discrimination and inequality based on gender.
New York State has a proud history and tradition of leading the nation
in progressive ideals and reforms. This is especially so with respect to
women's rights. In 1848, the women's suffrage movement was born at the
first Women's Rights Convention in Seneca Falls, New.York. From that
moment in time and continuing through today, the state has been the home
of female leaders and visionaries, from Elizabeth Cady Stanton who
initiated the first organized women's rights and women's suffrage move-
ments, to Andre Lorde, a leading African-American poet and essayist who
gave voice to women's issues, and Gloria Steinem, the journalist, author
and activist. These New Yorkers have served as role models for not only
their generation but for every generation to come.
Over the years, New York has fallen behind in its role as a progressive
leader on women's rights: Today, statistics clearly show that women in
New York State are not treated equally to men. Study after. study shows
gender inequality in our communities where women are paid less than men
for the same work, women face discrimination in the workplace based on
familial status and pregnancy, and women face discrimination in housing
because of their domestic violence victim status. Further, the State
still maintains antiquated laws on reproductive health that are not in
line with federal law and State practice.
The Women's Equality Act will break down barriers that perpetuate
discrimination and inequality based on gender. New York has served as a
model for equality and fairness on several issues including women's
rights. The Women's Equality Act will return the State to its rightful
place as a leader on women's equality.
SUMMARY OF PROVISIONS:
Section 1 of the bill names the act as the "Women's Equality Act".
Section 2 of the bill sets forth Parts A through J:
Part A would amend Labor L. § 194, which prohibits a differential.in
rate of pay because of sex, to replace the current "any other factor
other than sex" exception with an exception that requires that the
differential in rate of pay be based on a bona fide factor other than
sex such as education, training or experience. Such a factor could not
be based on a sex-based differential, and must be job-related and
consistent with business necessity. This standard would mirror the
current defense afforded to employers in disparate impact cases under
Title VII of the Civil Rights Act. The exception would not apply if the
employee demonstrated that an employer uses a particular employment
practice that causes a disparate impact on the basis of sex and that
there was an alternative employment practice that would accomplish the
same business purpose and the employer has refused to adopt such a prac-
tice. "Business necessity" would be defined as a factor that bears a
manifest relationship to the employment in question, the definition
enunciated by the Supreme Court in Grim v. Duke Power Co., 401 U.S. 424
(1971) and subsequent cases. Additionally, § 194 would be amended to
clarify that a differential in pay may not exist even if the two employ-
ees whose rate of pay is being compared work in different physical
locations, provided that those locations were in the same geographic
region. Scotian 194 would also be amended to forbid employers from
prohibiting employees from sharing wage information. This protection
helps guarantee the individual state right of equal pay, without inter-
fering with current' federal provisions regarding collective protected
activity aimed at "mutual aid and protection".
This Part would also:
*amend Labor L. § 198 to increase the liquidated damages allowed for
willful violations of§ 194 to up to 300% of the wages found to be due;
and
*require the Department of Labor and the Division of Human Rights to
make training available to employers to assist them in preventing
discrimination and harassment in the workplace.
Part B would amend Exec. L. § 292 to apply the existing provisions of
the Human Rights Law to employers with fewer than four employees in
cases of sexual harassment.
Part C would amend Exec. L. § 297 to provide for attorney's fees in
employment or credit discrimination cases when sex is a basis of
discrimination and retain the existing allowance for attorney's fees in
housing and housing related.credit cases. It would similarly amend Exec.
L. § 296-a to permit the awarding of attorney's fees in credit discrimi-
nation cases when sex is a basis of discrimination in matters brought
before the Department of Financial Services.
Part D would amend Exec. L. § 296 law to prohibit discrimination in
employment based on familial status.
Part E would amend the Real Property Law to add a new Section 227-d,
which would prohibit discrimination against domestic violence victim
status in housing. 'A violation of this prohibition would be a misdemea-
nor. This Section would also allow for a civil action for a violation of
the prohibition. This Part would also add a new Section 744 to the Real
Property Actions and Proceedings Law to, in a proceeding to recover
possession of a residential unit, provide a defense that such proceeding
is unlawfully based on a person's domestic violence victim status. An
exemption would exist under both of these sections for a building that
is owner occupied with two or fewer units. This Part would also create a
task force to study the impact of source of income on access to housing.
Part F would amend the Family Conn Act, the Criminal Procedure Law, and
the Domestic Relations Law to make clear that a protected party in whose
favor the order of protection or temporary order of protection is issued
may not be held to violate such order and that the protected party
cannot be arrested for violating such order.
Part G would amend the Family Court Act and the Judiciary Law to allow
for the development and establishment of a pilot program in family
courts for the remote petitioning and issuance by audio-visual means of
temporary orders of protection. It would also amend the Executive Law to
require that the Chief Administrator of the Courts submit regular
reports to the Governor and the Legislature on court practices, proce-
dures and services with respect to the adequacy and appropriateness of
its services for crime victims.
Part H would amend the Penal Law and several other provisions of law to
address human trafficking. The Penal Law would be amended to:
*conform the ages of victims in certain prostitution offenses under
Article 230 to the ages of victims of rape offenses under Article 130;
*raise penalties for sex trafficking and labor trafficking, including
making significant violations of both crimes violent felonies, and
creating an aggravated labor trafficking crime;
*provide an affirmative defense for defendants being prosecuted under
prostitution and loitering statutes that the defendant's participation
was the result of being a victim of sex trafficking or compelling pros-
titution;
*improve the school zone prostitution law by adding as a class E felony
the offense of patronizing a person for prostitution in a school zone;
*eliminate the term "prostitute" and replace it with "person for prosti-
tution";
*add three new sections, 230.11, 230.12 and 230,13, to create three new
aggravated patronizing offenses where the person patronized is a minor:
aggravated patronizing a minor for prostitution in the third degree, a
class E felony; aggravated patronizing a minor for prostitution in the
second degree, a class D felony; and aggravated patronizing a minor for
prostitution in the first 'degree, a class B felony;
*provide that a person is guilty of promoting prostitution in the second
degree if he or she knowingly advances or profits from prostitution of a
person less than 18 years old, a class C felony;
*provide that a person is guilty of promoting prostitution in the first
degree if he or she knowingly advances or profits from prostitution of a
person less than 13 years old, or, being 21 years old or more, knowingly
advances or profits from prostitution of a person less than 15 years
old, a class B felony; and
*make the crime of compelling prostitution a class B felony when a
defendant, who is 18 years old or more, knowingly advances prostitution
by compelling a person less than 18, by force or intimidation, to engage
in prostitution.
In addition, this Part would expand the porthole for the availability of
human trafficking victim services by providing that a victim of human
trafficking may, in addition to contacting law enforcement, also contact
an established provider of social or legal services designated by the
Office of Temporary.and Disability Assistance (OTDA), the Office for the
Prevention of Domestic Violence (OPDV), or the Office of Victim Services
(OVS)to become eligible for services. This Part would also create a
civil right of action for victims of trafficking and compelling prosti-
tution crimes to sue their perpetrators and others in civil court for
damages; extend the interagency taskforce on human trafficking; and
provide for the suspension and revocation of Class E drivers licenses-
the license required to drive passengers for hire for those who-are
convicted of certain trafficking crimes. This Part would also require
training for law enforcement.
Part I would amend Exec. L. § 296 to clarify that employers must perform
a reasonable accommodation analysis for employees with pregnancy-related
conditions. A pregnancy-related condition would be defined as a medical
condition related to pregnancy or childbirth. A reasonable accommodation
would not have to be granted if it imposed an undue hardship on an
employer. A pregnancy-related condition would be treated as a temporary
disability For the purposes of current Division of Human Rights regu-
lations regarding reasonable. accommodations. Additionally, it would
codify in law a requirement currently in regulation that an employee
must cooperate in providing medical or other information to verify the
existence of a disability or pregnancy-related condition. It would also
clarify that nothing in this subdivision or in Part D of this bill would
affect existing requirements to accommodate any protected class other
than the requirements that are explicitly set forth in the bill.
Part J would amend the Public Health Law to protect a woman's right to
choose by codifying in state law the federal Supreme Court decision Roe
v. Wade, 410 U.S. 113 (1973). This part would allow a woman to terminate
her pregnancy within twenty-four weeks of the commencement of her preg-
nancy, or when necessary to protect a woman's life or health as deter-
mined by a licensed physician. This Part would further prohibit any
prosecution or proceeding under the Penal Law for any action authorized
by this section or permitted by the Public Health Law and Education Law.
This Part would also repeal Penal L. §§ 125.05(2), 125.05(3),
125.15(2), 125.20(3), 125.40, 125.45, 125.50, 125.55, and 125.60 to the
extent they are inconsistent with this Part. Part J would also make
clear that nothing in the amendment shall conflict with any applicable
state or federal law or regulation permitting a health care provider to
refrain from providing abortions due to the provider's religious or
moral beliefs, or with the federal partial birth abortion ban codified
in 18 U.S.C. § 1531.
Section 3 of the bill is a severability clause.
Section 4 of the bill establishes the effective dates of the bill and
its parts.
EXISTING LAW:
This bill would impact existing protections that are available under the
Labor Law and the Executive Law. It would also impact existing
provisions of law regarding orders of protection. It would modify exist-
ing laws regarding sex and labor trafficking and prostitution offenses,
found in the Penal Law, the Social Services Law, and several other
provisions of law. It would also amend the Public Health Law.
STATEMENT IN SUPPORT:
* Achieving Pay Equity
Wage disparities have a detrimental effect on society. Individuals are
put at an economic disadvantage because of characteristics that bear no
relationship to their job performance. Such disparities prevent maximum
utilization of labor in the State economy. Additionally, policies
adopted by employers that discourage or prohibit employees from sharing
information about their earnings can contribute to unjust wage dispari-
ties going undetected. Despite existing protections under the law, women
in New York earn 84 percent of what men earn and jobs traditionally held
by women pay significantly less than jobs predominately employing men.
In New York, on average, a woman working full time is paid $42,113 per
year, while a man working full time is paid $50,388 per year.. This
creates a wage gap of $8,275 between full-time working men and women in
the state.
This bill would amend existing law to ensure that women receive the
wages they were always entitled to, as well as provide for increased
liquidated damages. Individuals who were paid unequal wages would be
entitled to liquidated damages of up to 300% of the amount of unpaid
wages. Existing exemptions in the law would be tightened so that pay
differentials are excused where the employer can show that the differen-
tial is truly caused by something other than sex and is related to job
performance and consistent with business necessity. Employers would
also be prohibited from forbidding employees from sharing wage informa-
tion that would otherwise deny women workers the ability to discover
whether their wages are unequal to their male counterparts.
* Stopping Sexual Harassment in All Workplaces
Sexual harassment disproportionately affects women in the workplace. In
2011, women filed 75% of all sexual harassment complaints filed at the
New York State Division of Human Rights and 83% of all sexual harassment
complaints filed at the Equal Employment Opportunity Commission. Howev-
er, those persons working for employers with fewer than 4 employees
cannot file a complaint with the State, because small employers are
currently exempt from the provisions of State law that prohibit harass-
ment-and more than 60% of the state's private employers have fewer than
4 employees. This bill would amend the law to protect workers from sexu-
al harassment regardless of the size of the workplace. Under the amended
law, an employee of any business, large or small, may be a complaint for
sexual harassment.
*Allowing for the Recovery of Attorney's Fees in Employment and Credit
and Lending Cases
Under existing law, attorney's fees for employment and credit and lend-
ing sex discrimination cases are not available even after the plaintiff
proves discrimination at trial. As a result (a) many who are discrimi-
nated against but cannot afford to hire an attorney never seek redress;
(h) those who hire an attorney on a contingency fee arrangement are not
"made whole" for their losses because they must pay for their attorneys
out of their recovery; and (c) some who cannot afford to hire an attor-
ney, but who try to do so on a contingency basis, are unsuccessful
because the case is either too small or too risky. This bill would allow
for reasonable attorney's fees in employment and credit discrimination
cases when sex is a basis of discrimination.
*Ending Familial Status Discrimination
Women with children are less likely to be recommended for hire and
promoted, and, in most cases, are offered less in salary than similarly
situated men. This type of discrimination impacts those who arc perhaps
most in need-70% of children living with single mothers are poor or low
income. Currently, State law protects against familial status discrimi-
nation in housing, but not employment. This bill would prohibit employ-
ers from denying work or promotions to workers simply based on their
familial status.
*Stopping Housing Discrimination for Victims of Domestic Violence
Discrimination against victims of domestic violence is almost always
discrimination against women. Of all victims of domestic violence. 85%
are women; an estimated 1.3 million women are victims of assault by an
intimate partner each year, and about l in 4 women will experience inti-
mate partner violence in their lifetimes. This bill would amend the Real
Property Law to protect victims of domestic violence from discrimination
when they attempt to rent or lease housing and provide victims of domes-
tic violence a defense in eviction proceedings.
*Protecting Victims of Domestic Violence by Strengthening Order of
Protection Laws
Women face too many obstacles in securing protection from their abusers.
For example, some victims of domestic violence require immediate tempo-
rary orders of protection, but have no means to travel to the appropri-
ate family court. To protect victims of domestic violence, and ensure
that they are able to secure much-needed orders of protection, this
provision would allow the Office of Court Administration to develop a
pilot program to allow victims to petition for temporary orders of
protection remotely.
*Strengthening Human Trafficking Laws
Human trafficking is a crime that exploits vulnerable individuals. For
both sex and labor trafficking, victims are made to act against their
will and in many cases, are forced or coerced into committing crimes.
For victims of sex trafficking; who are almost always women, the crime
is often prostitution.
While New York has one of the most comprehensive anti-human trafficking
laws in the country, this bill would strengthen the existing law to: (a)
increase penalties for trafficking; (b) expand the scope of certain
promoting prostitution crimes and the crime of compelling prostitution;
(c) create an affirmative defense in prostitution prosecutions that a
defendant's participation was a result of having been a trafficking
victim; and (d) make it easier for trafficking victims to receive
services. These amendments will deter human trafficking, make prose-
cution and enforcement more effective, and solidify New York's status.as
a leader among the states in protecting vulnerable individuals subject
to exploitation.
*Stopping Pregnancy Discrimination Once and For All
Conditions related to childbirth and pregnancy can result in impairment
requiring accommodation. Some pregnant workers require modest adjust-
ments on the job for conditions related to Pregnancy and childbirth in
order to stay healthy and keep working. Employees may require a stool to
sit on, extra restroom breaks, transfer-away from hazardous duties, a
temporary reprieve from heavy lifting, or a reasonable time for child-
birth recovery. En order to adequately protect the rights of pregnant
workers, it is necessary to create a specific protection in the Human
Rights Law requiring employers to provide a reasonable accommodation for
pregnancy-related conditions, unless doing so would create an undue
hardship. While the Division of Human Rights has long interpreted the
sex and disability protections of the Human Rights Law to encompass
pregnancy-related conditions, recent Court decisions have contributed to
the already considerable confusion as to' the availability and extent of
this protection. The purpose of this bill is to codify the Division's
existing interpretation of the law while not depriving women of any of
their existing protections under the disability and sex discrimination
provisions of the law.
*Protecting a Woman's Freedom of Choice
This section of the bill aligns State law with existing federal law. In
Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court ruled
that the United States Constitution protects a woman's right to termi-
nate her pregnancy when necessary to protect the health and life of the
woman. New York became one of the first states to provide women the
right to choose prior to Roe and therefore did not include elements now
protected under federal law. This proposal would not change or alter
existing State and federal laws that permit a health care provider or
institutions from refraining from providing an abortion for religious or
moral beliefs, would not expand the class of individuals who could
perform abortions, nor would it alter the current long-standing criminal
ban on partial birth abortion. However, it would incorporate the impor-
tant reproductive rights that women in New York have had since Roe.
BUDGET IMPLICATIONS:
This bill has no budget implications for the State.
EFFECTIVE DATE:
This bill would take effect 90 days after enactment, except for Part G,
which would take effect on April I, 2014, and Part J which would take
effect 30 days after enactment.
