Toolkit Layout 9.17.24 digital MM final (Part 1 of 4)

New York

Women Valued

Empowering Women In The Workplace

Contents 4 Acknowledgments 5 About Women Valued 8 Introduction 10 Legal Checklist for Women’s Economic Equality 12 Sex and Gender Discrimination 17 Sexual Harassment 21 Equal Pay 25 Minimum Wage and Fair Wage Practices 29 Economic Opportunity 34 A Safe Workplace and Fair Working Conditions 39 Domestic Violence, Sexual Assault, and Stalking 45 Reproductive and Maternal Health 49 Pregnancy, Childbirth, and Breastfeeding 53 Paid Family Leave 57 Child Care Assistance and Protections for Caregivers 60 Public Benefits 66 Protecting Our Rights Together 70 Additional Resources 71 Endnotes

Acknowledgments The Legal Toolkit for Women’s Economic Equality is a project of Legal Momentum’s Women Valued Initiative. Women Valued was generously funded by a Cy Pres Award from Mehri & Skalet, PLLC. This project was also made possible in part by a grant from the New York Bar Foundation. Legal Momentum extends its deep gratitude to the organizations that participated as members of our Women Valued Advisory Council. These organizations volunteered their time to provide targeted expertise to improve our guidance to better serve the most vulnerable women in New York State.

Women Valued Advisory Council Center for Family Life National Domestic Workers Alliance New York Civil Liberties Union Restaurant Opportunities Center of New York Sanctuary for Families The Worker Institute at Cornell Worker Justice Center of New York Legal Momentum also extends special thanks to all of the individuals and entities who generously contributed their time, skills, and expertise to helping us improve this Toolkit, including:

Catherine Barnett, Maru Bautista, Maria Figueroa, Sharon Hang, Jill Hopfield, Hughes Hubbard & Reed LLP, Rachel Isreeli, Emma Kreyche, Beth Lyon, Yamila Ruiz, Marrisa Senteno, Tarra Uddin, KC Wagner, Shaina Weisbrot, Wenqing Zhu, and Lisa Zucker. The layout for the Legal Toolkit for Women’s Economic Equality was designed by Randall Martin, Randall Martin Design.

© 2024 Legal Momentum. This publication is copyrighted, but may be used free of charge for education, advocacy, and the provision of client services, provided that the source is acknowledged and accredited in full. For questions regarding additional uses, please contact Legal Momentum through our website: https://www.legalmomentum.org.

About Women Valued Harnessing Legal Momentum’s long history and experience working on gender discrimination in the workplace, Women Valued takes a uniquely intersectional approach to women’s economic empowerment and workplace equality that prioritizes the unmet needs of the most underserved women. By implementing a two-part strategy of holistic empowerment and policy advocacy, Legal Momentum is leading the way to establish a workplace culture of equal opportunity and system-wide accountability for ALL women.

With this goal in mind, the Initiative provides and engages in targeted legal education and advocacy on behalf of the most undervalued women in the workplace and in our economy, including: 1 women with a low-income; 2 women earning a low-wage, particularly those working in high-risk industries, such as domestic workers, hospitality workers, and farmworkers; 3 immigrant women; 4 women of color; and 5 victims of domestic violence, sexual assault, and stalking.

Taking a holistic approach to addressing existing obstacles, Women Valued provides comprehensive guidance and engages in advocacy on 13 core issues that can profoundly impact a woman’s economic security. Sex Discrimination • Sexual Harassment • Equal Pay • Minimum Wage and Wage Theft Economic Opportunity • Safe Workplaces and Fair Working Conditions • Workplace Protections for Survivors of Domestic Violence, Sexual Assault, and Stalking • Reproductive and Maternal Health • Pregnancy, Breastfeeding, and Childbirth • Paid Family Leave • Child Care Assistance Public Benefits • Collective Action Women Valued is strongly committed to ensuring that ALL women are better informed about their rights. Through this Toolkit, the Initiative educates women and their advocates on the 13 core issues, including available legal rights, protections, and benefits. With this knowledge, advocates working on the front lines with the most vulnerable women will be better equipped to provide their clients with critical information that impacts their economic security. With this knowledge, women in all walks of life will be better equipped not only to defend themselves, but to proactively pursue equality in the workplace before discrimination occurs.

Women Valued is similarly committed to ensuring that our laws achieve meaningful and comprehensive workplace equality for ALL women. Through Legal Momentum’s Working Women’s Bill of Rights, the Initiative has set forth an integrated legislative agenda for women’s economic equality, setting priorities in the same 13 cross-cutting issue areas.

The most common way people give up their power is by thinking they don’t have any.” – Alice Walker, Writer & Activist 66 ©© 2 2002244 L Leeggaal lM Moommeenntutumm

New York

Women Valued

Empowering Women In The Workplace

A Legal Toolkit for Women’s Economic Equality Guidance for Women & Advocates

Women are Undervalued Due to persistent gender discrimination, women continue to be undervalued in the workplace. As a result, women often have difficulty finding decent work, face unfair treatment from employers, and encounter barriers to advancement. If you are a woman working or trying to find a job, you may at some point find yourself in a situation where you are treated worse or paid less than a male coworker, sexually harassed or abused at work, subjected to unsafe working conditions, robbed of your wages, or unable to find or keep a job because you have to care for a child or other family member.

To make matters worse, many of these disadvantages often intersect and weave together in ways that add up or can spiral out of control. For example, you may be more likely to be a target of sexual harassment because you earn low-wages and care for your family, and your employer knows that you cannot afford to lose your job.

While women often accept these conditions as inevitable, it is important to remember that it doesn’t have to be this way. There are a range of laws designed to protect you in these scenarios. In fact, when actions that your employer is taking seem unfair, they may be in violation of the law. To safeguard yourself, it is critical that you are aware of your rights and informed about ways you can assert them.

Reclaiming Your Value Through Knowledge All women—regardless of economic situation or immigration status—have certain legal rights. Recognizing that women often face a range of overlapping problems in the workplace, this Toolkit identifies 13 rights and benefits in New York State, based on federal, state, and local laws, that women and advocates should know about.

By providing basic information about rights in these 13 core areas and ways to assert these rights, this Toolkit will also prepare you to 1 better identify when your rights are being violated, 2 ask the right questions to find out what rights and benefits are available, 3 take steps to preserve your rights, 4 gain the confidence to assert these rights when necessary, 5 take preventative steps to keep one discriminatory act from spiraling into others, and 6 demand more comprehensive support to achieve economic equality.

To be proactive, we must know our rights and obligations even before we face discrimination. The more we assert our rights, and when we do so together, the more meaningful these legal protections become. 8 © 2024 Legal Momentum

Introduction.

How to Use This Toolkit This Toolkit is for women working and/or residing in New York State and for advocates providing support to women in New York State. The Legal Checklist provides a synopsis of the 13 rights and benefits covered in this Toolkit. Each subsequent section provides more detailed guidance on applicable legal protections, who is covered, ways you can assert your rights, resources available to assist you, and options for where you can go at the federal, state, and local levels to file a complaint. APPLICABLE LAWS: The Toolkit provides guidance on your rights under federal, state, and local laws. Federal laws are enacted by Congress and apply nationwide. In addition to federal laws, states often have similar (and sometimes stronger) laws in place. The county, city, or town where you work or live may also have passed laws that protect you, which we refer to as local laws. In some cases, if your situation is not covered by federal law, you may be covered by state or local laws, or vice versa. In New York State, many state and local laws provide stronger protections for women than federal laws. This Toolkit provides guidance on all three types of laws that apply in New York State. WHO IS COVERED: This Toolkit focuses on legal protections based on sex and gender, as defined under federal, state, and local laws. Depending on the law, many of the rights covered in this Toolkit apply regardless of sexual orientation, to people of all gender identities, transgender people, working families, and men. The Toolkit also provides targeted guidance for women who are most undervalued in our economy, including 1 women with a low-income; 2 women working a low-wage job, especially those in a high- risk industry such as domestic work, farm labor, or hospitality; 3 women of color; 4 women with unstable immigration status; and/or 5 victims of domestic violence, sexual assault, or stalking. HOW TO USE THIS TOOLKIT: The Toolkit should be used as a starting point to guide you when trying to determine what rights you have based on where you live. Note that this Toolkit is for informational purposes and is not intended to provide legal advice. It is a starting point, not a substitute for a conversation with an attorney. While some protections apply generally to all individuals in New York State, regardless of immigration status, certain protections may not apply to you depending on your specific circumstances or based on the number of people who work for your employer. Additionally, there may be costs and risks associated with asserting your rights. Therefore, if you have questions about your rights in one or more of these areas or believe your rights have been violated, contact a legal advocate or an attorney. We specifically urge men, as bystanders, as fathers, as husbands or partners, as brothers, as sons, and as employers to use this Toolkit to educate themselves about the broad-ranging issues that profoundly impact women’s economic security and to recognize their equal role in raising families and working to achieve equal, inclusive, and diverse workplaces. FOR FURTHER ASSISTANCE: For information, referrals, and resources (in English and Spanish), contact Legal Momentum’s Helpline at (1-800-649-0297) or Help@LMHelpline.org or visit the Additional Resources section at the end of this Toolkit. 9 © 2024 Legal Momentum © 2024 Legal Momentum 9.

APPLICABLE LAWS: The Toolkit provides guidance on your rights under federal, state, and local laws. Federal laws are enacted by Congress and apply nationwide. In addition to federal laws, states often have similar (and sometimes stronger) laws in place. The county, city, or town where you work or live may also have passed laws that protect you, which we refer to as local laws. In some cases, if your situation is not covered by federal law, you may be covered by state or local laws, or vice versa.

In New York State, many state and local laws provide stronger protections for women than federal laws. This Toolkit provides guidance on all three types of laws that apply in New York State. WHO IS COVERED: This Toolkit focuses on legal protections based on sex and gender, as defined under federal, state, and local laws. Depending on the law, many of the rights covered in this Toolkit apply regardless of sexual orientation, to people of all gender identities, transgender people, working families, and men.

The Toolkit also provides targeted guidance for women who are most undervalued in our economy, including 1 women with a low-income; 2 women working a low-wage job, especially those in a high- risk industry such as domestic work, farm labor, or hospitality; 3 women of color; 4 women with unstable immigration status; and/or 5 victims of domestic violence, sexual assault, or stalking.

HOW TO USE THIS TOOLKIT: The Toolkit should be used as a starting point to guide you when trying to determine what rights you have based on where you live. Note that this Toolkit is for informational purposes and is not intended to provide legal advice. It is a starting point, not a substitute for a conversation with an attorney. While some protections apply generally to all individuals in New York State, regardless of immigration status, certain protections may not apply to you depending on your specific circumstances or based on the number of people who work for your employer. Additionally, there may be costs and risks associated with asserting your rights. Therefore, if you have questions about your rights in one or more of these areas or believe your rights have been violated, contact a legal advocate or an attorney.

We specifically urge men, as bystanders, as fathers, as husbands or partners, as brothers, as sons, and as employers to use this Toolkit to educate themselves about the broad-ranging issues that profoundly impact women’s economic security and to recognize their equal role in raising families and working to achieve equal, inclusive, and diverse workplaces.

FOR FURTHER ASSISTANCE: For information, referrals, and resources (in English and Spanish), contact Legal Momentum’s Helpline at (1-800-649-0297) or Help@LMHelpline.org or visit the Additional Resources section at the end of this Toolkit.

1. Sex & Gender Discrimination.

2. Sexual Harassment.

3. Equal Pay.

4. Minimum Wage & Fair Wage Practices.

5. Economic Opportunity.

6. A Safe Workplace & Fair Working Conditions.

New York Legal Checklist for Women’s Economic Equality This Checklist provides a synopsis of the 13 rights, protections, and benefits covered in the Legal Toolkit for Economic Equality. Some of these rights overlap—but the Toolkit is divided into 13 core areas for ease of reference. For example, the prohibition against sex and gender discrimination is an overarching prohibition that covers many of the individual prohibitions in the subsequent sections, which provide more detailed guidance. Note that, depending on your circumstances, certain protections may not apply to you or additional protections may apply. For more information, visit the appropriate section in the Toolkit.

1 Sex & Gender Discrimination You have the right not to be discriminated against at work on the basis of your sex or gender. This right is fundamental and encompasses many of the specific protections below. The law also protects you based on your gender identity, sexual orientation, and familial status.

2 Sexual Harassment You have the right to a workplace free of sexual harassment and abuse. Sexual harassment is a form of sex discrimination. 3 Equal Pay The law prohibits employers from paying you less because of your sex or gender. This type of treatment is a form of sex discrimination. Your employer is also prohibited from punishing you for discussing or disclosing rates of pay with your colleagues, and, depending on where you work, an employer may be prohibited from asking about or relying on your prior salary to set your new salary.

4 Minimum Wage & Fair Wage Practices You have the right to be paid for your work. It is illegal for your employer to steal your wages, pay you below the state minimum wage, or force you to work for no wages. 5 Economic Opportunity It is unlawful for a lender or financial institution to deny you a loan or financing based on your sex or gender. Resources are available to help you find a job; improve your finances; start a business; and obtain education, language, and skills trainings to get a job, including jobs in higher paying fields.

6 A Safe Workplace & Fair Working Conditions You have the right to a safe workplace free from hazards that could cause you serious harm and free from coercive working conditions. Depending on your circumstances, you may also be entitled to certain fair work practices such as breaks, days of rest, sick time, leave, and fair scheduling.

7. Domestic Violence, Sexual Assault & Stalking.

8. Reproductive & Maternal Health.

9. Pregnancy, Childbirth & Breastfeeding.

10. Paid Family Leave.

11. Child Care Assistance & Protections for Caregivers.

13. Protecting Our Rights Together.

7 Domestic Violence, Sexual Assault & Stalking It is unlawful for an employer to discriminate against you in the workplace based on your status as a victim of domestic violence. Depending on where you live additional protections may exist, including protections for victims of sexual assault or stalking, that can help you keep or leave your job while addressing the abuse.

8 Reproductive & Maternal Health You have the right to a safe and confidential abortion until your 24th week of pregnancy or at any point medically necessary to protect your life or health. If you receive Medicaid or have health insurance, your provider must cover critical family planning services, including contraception and abortion services at no additional cost.

9 Pregnancy, Childbirth & Breastfeeding It is unlawful for an employer to treat you less favorably in the workplace on the basis of pregnancy, childbirth, or a related medical condition. This type of treatment is a form of sex discrimination. An employer is also prohibited from discriminating against workers for pumping breast milk at work and you have the right to take breaks to do so. Depending on your situation, you may have the right to additional workplace protections to adjust your working conditions or to take paid or unpaid leave if needed.

10 Paid Family Leave If you have worked enough days and hours, you have the right to paid, job-protected leave to care for a newborn, a newly adopted child, or a sick family member, or to address certain family needs that result from military deployment. You may also have the right to other forms of leave to assist you with caring for yourself and your family.

11 Child Care Assistance & Protections for Caregivers It is unlawful for an employer to discriminate against you because you have children. Based on your income, you may be eligible for child care assistance to help you get or keep a job. 12 Public Benefits Based on your income, you may be eligible for critical public benefits, including cash assistance, food assistance, free healthcare, and housing assistance. If your benefits are denied or terminated, you must be informed in advance and have an opportunity to contest the determination. if you do not speak English and need assistance, you can request language assistance (translation and interpretation).

13 Protecting Our Rights Together You may have certain rights and opportunities to organize, join a union, and take action with other workers to improve your pay and working conditions without being punished by your employer. 11 © 2024 Legal Momentum © 2024 Legal Momentum 1111

Sex and Gender Discrimination: You have the right not to be discriminated against at work on the basis of your sex or gender. This right is fundamental and encompasses many of the specific protections below. The law also protects you based on your gender identity, sexual orientation, and familial status..

1122. © 2024 Legal Momentum. Sex and Gender Discrimination: No country can ever truly flourish if it stifles the potential of its women and deprives itself of the contributions of half of its citizens.” – Michelle Obama, Lawyer & Former First Lady of the United States © 2024 Legal Momentum.

Sex and Gender Discrimination work on the basis of your sex or gender. This right is fundamental and encompasses many of the specific protections below. The law also protects you based on your gender identity, sexual orientation, and familial status. No country can ever truly flourish if it stifles the potential of its women and deprives itself of the contributions of half of its citizens.” – Michelle Obama, Lawyer & Former First Lady of the United States 1122 © 2024 Legal Momentum © 2024 Legal Momentum

What is Sex or Gender Discrimination?

Sex and gender discrimination are still a common reality, and

• Assigns women in the workplace to lower paying jobs. This can

they can occur in many different ways. You may be a victim of occur in many types of workplaces, including at the office, on unlawful discrimination if you are treated differently than other the farm, or in the service industry. applicants or employees and that treatment negatively impacts your employment or application for employment by an employer • Denies a request for an accommodation for a pregnancy- or potential employer, because of your gender, gender identity, related medical condition when similar accommodations are and/or sexual orientation. provided to non-pregnant workers for other medical conditions.

Note that sex discrimination includes conduct covered in certain • Pays a male worker with similar training and work experience sections that follow, such as sexual harassment, unequal pay more than a female worker doing the same work. based on sex or gender, and pregnancy discrimination. Those sections provide more detailed guidance on those forms of • Makes women, rather than men do tasks historically assigned discrimination. to women, like making the coffee for the office or cleaning up.

Sex or gender discrimination comes in many forms. Some • Issues an employee a poor performance evaluation due to the examples of discrimination may include the following scenarios fact that the employee is perceived as lacking femininity or where an employer: masculinity or is not “conforming” to a gender role.

• Hires a man over a woman with the same qualifications. • Engages sexual harassment (see next section on sexual

harassment).

• Refuses to hire you for a position, telling you that women aren’t

physically strong enough for the job. NOTE: Depending on the size of your employer, other forms

• Has a practice of promoting men with less experience when of discrimination are also prohibited, some of which often

overlap with sex- or gender-based discrimination, including there are women with more experience. discrimination based on age, race, color, national origin, religion, disability, and family status.

Who is Protected by the Law?

Generally, all employers are covered, although exceptions do exist. DOMESTIC WORKERS: Domestic workers, even those working as the sole employee, are protected against sex Anywhere in the United States, you have the right to work in discrimination.5 an environment free from sex discrimination if you work for NYC: In New York City, employers are also prohibited from an employer with 15 or more employees, including private discriminating against you because you are a caregiver.

employers, government employers, employment agencies, and You are a caregiver if you are responsible for caring for a labor organizations.1 young child, a covered relative (such as your spouse, partner, parent, sibling, grandchild, or grandparent), or a person who In New York State, sex discrimination is prohibited if it is based on resides in your household who relies on you for medical care your gender (including actual or perceived gender identity), familial and assistance.6 status, or sexual orientation regardless of the number of individuals IMMIGRATION STATUS: Although an employer can employed by your employer.2 The law specifically protects women refuse to hire you if you do not have work authorization,7 planning on having a family (for example, women who are trying to once you are hired, it is unlawful for your employer to get pregnant or adopt), and also protects trans women and others discriminate against you based on your sex (or other factors within the LGBTQ community. such as race or ethnicity), regardless of your immigration status. This applies even if you don’t have work authorization.

The law now extends protections to non-employees such as It is also against the law for your employer to threaten to contractors, vendors, and consultants.3 report you to authorities if you file a complaint or try to assert your legal rights to protect yourself from sex discrimination. New York State law now makes clear that protections against In short, once you are hired, it is unlawful for your employer discrimination in employment extend to all state and local government to use your immigration status against you if you seek employees throughout the executive, judiciary, and legislative branches, to report workplace discrimination or to penalize you for including the staff of elected officials and judges.4 doing so.8 Federal law also protects certain individuals

from employment discrimination based on national origin or be entitled to the same remedies in court.13 immigration/citizenship status.9 For example, while the law does not protect “unauthorized aliens,” it does protect U.S. It is unlawful for an employer to retaliate against you for citizens, recent permanent residents, asylees, and refugees. exercising your rights under these laws; however, that does The law prohibits employers from discriminating against not mean that your employer will not penalize you.

individuals based on their citizenship or immigration status in If you think your rights have been violated, contact a legal hiring, firing, recruitment, and referral for a fee. For example, advocate or an attorney to determine the best way to protect you may have suffered unlawful discrimination if you were not yourself. For assistance, visit the Additional Resources hired for a job or fired from one because you are a non-citizen section at the end of this Toolkit.

with work authorization and an employer chooses not to hire you or keep you on because it does not want to “deal with the hassle” of completing additional paperwork. DOMESTIC WORKERS: If you are a domestic worker In conducting its employment verification, an employer (e.g., someone working for another person in a private must accept any document you present from the designated home caring for children, an elderly person, or a person verification list so long is it reasonably appears to be genuine with a disability, or someone providing home care services, and relates to you and not another person. Employers are house cleaning, cooking, or gardening services), New York prohibited from demanding only specific documents, from State prohibits employers from discriminating against and requiring more documents than required by the government, harassing you on the basis of your gender.14 or from requiring an applicant to submit documents before accepting a job offer. For more information, including the list of acceptable documents, visit: https://www.uscis.

FARMWORKERS: Note that if you are a farmworker, gov/i-9-central/employee-rights-resources/preventing- certain labor laws may not apply to you. However, you are discrimination. covered by anti-discrimination laws, and it is unlawful for your employer to discriminate against or harass you because Both New York State and New York City also prohibit you are a woman or based on your race, ethnicity, national discrimination based on immigration or citizenship status.10 origin, or any other protected category.

You also have certain privacy protections. For example, if you file a federal, state, or local discrimination complaint in NOTE: Certain laws only apply to workers classified as New York State, the agency or the court should not ask you “employees.” However, just because you are not considered an about your immigration status and you can assert your right to privacy if they do.11 “employee” by your employer does not mean that you are not covered as an “employee” under the law. If you have questions NYC: In New York City, city agencies and law enforcement are about whether a law applies to you, speak with a lawyer or prohibited from asking you about your immigration status or legal advocate. One common misconception (which employers disclosing your status, except in limited circumstances.12 use to their advantage) is that whatever your employer calls you—for example an “independent contractor”—is what you are Note that if you decide to file a complaint or take legal under the law. That may not be true for you depending on the action, you are equally protected by the law but you may not circumstances of your employment.

What are My Legal Rights?

In New York State, if you are covered by the law, the law prohibits or locations), or deny or limit your access to advancement and your employer from treating you negatively because 1 you training opportunities. If you believe you are being discriminated against and you you have, or are responsible for caring for, a young child. For report it to your employer, your employer has a responsibility to the unfavorable treatment to qualify as prohibited conduct, investigate your complaint and correct any discrimination in a it must negatively impact the “terms and conditions” of your timely manner.

employment. This means that your employer cannot use one of the characteristics above to decide to not hire you, or to fire you, RETALIATION: Employers are legally prohibited from engaging demote you, deny a promotion, pay you less, change your work in “retaliation” (punishing you) if you address or challenge duties or conditions in a bad way (such as schedules, shifts, discrimination. This includes: reporting discrimination, helping your 14 © 2024 Legal Momentum noitanimircsiD xeS

What Can I Do to Assert My Rights?.

Each time a woman stands up for herself, without knowing it possibly, without claiming it, she stands up for all women.” — Maya Angelou, Poet and Civil Rights Activist If you believe you have been discriminated against in the or if it includes extra protections. If you are in a union, contact workplace, there are various actions you can take to advocate your union representative to find out about the union’s policies, for yourself. ways they can advocate on your behalf, and any additional protections they may have negotiated on your behalf. CONSULT WITH COLLEAGUES: Speak with trusted SEEK LEGAL GUIDANCE EARLY: If you think you have been colleagues regarding their workplace experiences. Talking subjected to sex discrimination in the workplace, you should with co-workers is a good way to identify broader or similar contact an attorney or legal services organization early in the problems. process. Sometimes simply informing your boss about the law can solve the problem. Existing law is also complicated and REVIEW YOUR WORKPLACE POLICY, EMPLOYMENT imposes certain procedural requirements, reporting deadlines, CONTRACT, AND/OR UNION CONTRACT: If you feel you and legal standards that you must meet in order to bring a claim. have been the victim of sex discrimination in the workplace, New laws are also creating new legal protections of which you you should obtain a copy of your workplace policy, if one exists, may be unaware. Many non-profits provide free consultations so that you know the procedure to follow and how to make a and may be able to provide free or low-cost legal assistance complaint. Your employer may provide stronger protections depending on your income or status. An attorney or advocate can provide you with necessary legal advice, help determine if you than what is in the law. If you have a contract or some form of have a valid complaint, and help you figure out a strategy. employment agreement, review that as well to determine if it places any limitations on how you can challenge your employer For guidance or a referral, contact Legal Momentum’s Helpline: © 2024 Legal Momentum © 2024 Legal Momentum.

coworkers to report, working with other employees to challenge While retaliation is illegal, your employer may still do it. Engaging discrimination in the workplace, filing a discrimination complaint or in retaliation is a separate violation of the law, meaning that, lawsuit, or participating in an internal or external investigation. in some cases, even if an employer is found not to have discriminated against you, if they retaliated against you, that is In New York State, “retaliation” is defined as any negative employment action taken by the employer. In other words, your still illegal—and they may still be required to pay damages.

employer cannot fire you, demote you, suspend you, cut your pay or Note, however, that even if you have complained of discrimination work hours, assign you more difficult work duties, or start issuing you must still comply with workplace rules, and you can still be poor performance evaluations to punish you for reporting sex subject to discipline or penalized for poor performance or for discrimination. Retaliation can also include more intensive or critical supervision, surveillance, or bad-mouthing you to your coworkers. breaking workplace rules.

As of March 16, 2022, the law specifies that it is “retaliation” if your employer leaks your personnel file in response to you NOTE: In New York, workers are generally employed “at challenging discrimination.15 will,” which means that you can be fired at any time for almost any reason or for no reason, so long as it is not for NYC: In New York City, “retaliation” is defined more broadly an illegal reason such as discrimination or retaliation based because it is not just limited to a negative employment action on a protected classification like sex or gender. However, and, instead, includes any action taken by the employer you may not be an “at will” employee if you are covered to discourage you, or any other employee, from reporting discrimination. Therefore, for immigrants and migrant workers, by a union or if you have an employment contract that it is unlawful for an employer to threaten to report you to establishes different standards. In that situation, you may immigration authorities if you report discrimination. have greater protections than an “at will” employee.

noitanimircsiD xeS Each time a woman stands up for herself, without knowing it possibly, without claiming it, she stands up for all women.” — Maya Angelou, Poet and Civil Rights Activist If you believe you have been discriminated against in the or if it includes extra protections. If you are in a union, contact workplace, there are various actions you can take to advocate your union representative to find out about the union’s policies, for yourself. ways they can advocate on your behalf, and any additional protections they may have negotiated on your behalf.

CONSULT WITH COLLEAGUES: Speak with trusted SEEK LEGAL GUIDANCE EARLY: If you think you have been colleagues regarding their workplace experiences. Talking subjected to sex discrimination in the workplace, you should with co-workers is a good way to identify broader or similar contact an attorney or legal services organization early in the problems. process. Sometimes simply informing your boss about the law can solve the problem. Existing law is also complicated and REVIEW YOUR WORKPLACE POLICY, EMPLOYMENT imposes certain procedural requirements, reporting deadlines, CONTRACT, AND/OR UNION CONTRACT: If you feel you and legal standards that you must meet in order to bring a claim.

have been the victim of sex discrimination in the workplace, New laws are also creating new legal protections of which you you should obtain a copy of your workplace policy, if one exists, may be unaware. Many non-profits provide free consultations so that you know the procedure to follow and how to make a and may be able to provide free or low-cost legal assistance complaint. Your employer may provide stronger protections depending on your income or status. An attorney or advocate can provide you with necessary legal advice, help determine if you than what is in the law. If you have a contract or some form of have a valid complaint, and help you figure out a strategy.

employment agreement, review that as well to determine if it places any limitations on how you can challenge your employer For guidance or a referral, contact Legal Momentum’s Helpline: © 2024 Legal Momentum

(212) 925-6635, ext. 650 or help@legalmomentum.org. (EEOC): https://www.eeoc.gov//field/newyork/charge.cfm. DOCUMENT THE DISCRIMINATION: Discrimination Act quickly because the law imposes strict deadlines for filing can be difficult to prove and employers can often justify a formal complaint with local, state, and federal agencies and negative treatment by pointing to factors other than an for bringing a lawsuit. In New York State, if you want to file employee’s gender. To strengthen your case, you should a federal complaint with the EEOC, you generally must do so document everything that happens in detail as early as within 300 calendar days from the date the discrimination took possible (including names, dates, places, times, witnesses, place. To file a state complaint with the New York State Division and the nature of any incident). Your documentation should of Human rights, you generally must file your complaint within include, if possible, the names and treatment of employees of one year from the date the discrimination took place. However, the opposite (or favored) gender so that you can better prove for acts that occurred after February 15, 2024, you may now file the difference in treatment. Keep a paper trail of relevant a complaint within 3 years from the date the discrimination took evidence, including threats of retaliation. Save copies of any place. Local agencies have different deadlines as well. Keep in and all evidence that relates to your complaint such as copies mind, however, that figuring out the deadline that applies to you of emails, text messages, written letters or notes, voicemails, can be a complex determination, involving various factors, so and photos. Save and print copies of all documentation and consult an attorney for guidance.

keep electronic and/or hard copies on a personal device or a The sooner you compile your documentation and file your folder that you maintain at home in case you are terminated complaint, the better—even if the discrimination is still ongoing or have to leave work and can no longer access your work (you can always supplement a complaint with additional computer or files.

instances if necessary). Depending on where you file, the agency can take different forms of action, such as helping you REPORT INTERNALLY: Once you notify your employer of mediate the dispute, investigating your employer, requiring workplace discrimination, your employer has a responsibility to your employer to change practices, imposing fines, awarding act quickly to take reasonable steps to correct the problem and damages, prohibiting your employer from firing or terminating prevent it in the future. In fact, your employer may be legally you, or ordering your employer to rehire you if you were fired.

responsible if it does not take adequate corrective measures to address the discrimination. Therefore, if you want your You can file a complaint with an administrative agency on your employer to take action or if you seek to hold your employer own. However, if you can obtain legal representation, having accountable, it is important that you report the discrimination to the assistance of a lawyer can help you comply with legal your employer. If you decide not to report discrimination to your requirements and put the strongest complaint forward.

employer, you may not be able to raise legal claims against your employer. FILE A LAWSUIT: If you feel like your employer did not appropriately address your discrimination complaint, you can If and when you are ready to report discrimination to your file a lawsuit against your employer under federal, state, and/or employer, start by requesting a copy of your workplace policy local law. To do so, you may have to meet certain prerequisites to find out the procedures to follow and who to contact. If or follow certain procedures. For example, if you want to file your workplace does not have a policy, start by reporting to a federal suit under Title VII of the Civil Rights Act for sex Human Resources or your supervisor (if s/he is not the one who discrimination, you must first file a complaint with the EEOC. If discriminated against you). In a small business setting, this may you choose to only bring claims under New York State law, you be the only avenue for reporting. If you belong to a union, you do not need to file a complaint with an administrative agency can contact your union representative for additional guidance.

before going to court, however, you should consult an attorney You should keep a clear record of the complaint you filed and or legal advocate to determine which option is best for you. your employer’s response, so try to submit everything in writing and request decisions in writing. If your employer refuses to If you file a lawsuit in federal or state courts, there are various provide written decisions, you should keep a written record, types of remedies you can obtain, including lost wages, future either by memorializing your verbal conversations in emails or wages, out-of-pocket expenses, and compensatory damages by keeping detailed notes of your verbal conversations.

for emotional distress. You may now also be eligible to obtain punitive damages (damages that exceed compensation and FILE AN ADMINISTRATIVE COMPLAINT: If you feel like are intended to serve as a penalty) and attorney’s fees in state your employer did not appropriately address your discrimination court.16 complaint, you can contact or file a formal administrative complaint with the following agencies: Keep in mind that bringing a lawsuit can be a complicated,

• Your local fair employment agency costly, and lengthy process, so you should consult an attorney

or a legal services organization to help you assess your claim

• The New York State Division of Human Rights (NYS-DHR):

and to find out what steps you must follow. As noted above, https://dhr.ny.gov/contact-us. you may be able to obtain free or low-cost legal assistance

• The federal Equal Employment Opportunity Commission depending on your income or status.

Sexual Harassment: You have the right to a workplace free of sexual harassment and abuse. Sexual harassment is a form of sex discrimination..

17. © 2024 Legal Momentum. Sexual Harassment: I watched her walk away from me as she tried to recapture her secrets and tuck them back into their hiding place. I watched her put her mask back on and go back into the world like she was all alone and I couldn’t even bring myself to whisper...Me too.” – Tarana Burke, Founder of the #MeToo Movement © 2024 Legal Momentum 1177.

You have the right to a workplace free of sexual harassment and abuse. Sexual harassment is a form of sex discrimination. I watched her walk away from me as she tried to recapture her secrets and tuck them back into their hiding place. I watched her put her mask back on and go back into the world like she was all alone and I couldn’t even bring – Tarana Burke, Founder of the #MeToo Movement 17 © 2024 Legal Momentum © 2024 Legal Momentum 1177

What is Workplace Sexual Harassment?

Sexual harassment is a form of sex discrimination. It is unlawful sending sexually explicit emails or voicemails, or displaying under federal, state, and local laws and it includes harassment pornography, sexually explicit images, or written materials. E.g., on the basis of your sex (as perceived or self-identified), sexual your co-worker regularly stares at you at work and tells you orientation, gender expression, gender identity, and transgender “you’re looking really good” or texts you pornographic images; status.

or, you are a domestic worker and your employer regularly Sexual harassment includes unwelcome physical or verbal walks around the house in a towel or in minimal clothing. conduct based on your sex that negatively impacts your work, is a term or condition of employment, or creates a hostile work • Sex stereotyping, talking about a gender in a derogatory way, or environment. If you are an applicant or employed, you may be the issuing gender-based work assignments. E.g., you are regularly victim of sexual harassment if you are subjected to the following:

scolded at work by your supervisor who tells you that men

• Unwelcome sexual advances, including unwanted touching are just smarter than women or makes you, but not your male

or comments of a sexual nature. E.g., you feel uncomfortable coworker, get him coffee every morning. because your co-worker keeps telling you that you look pretty or sexy. NOTE: Conduct that occurs outside the workplace can still

• Requests for sexual favors and/or threats to take negative or

be sexual harassment depending on if and how it affects positive action, depending on how you respond to the request. your work. Just because you engaged in a consensual E.g., your boss threatens to notify immigration authorities, romantic or sexual relationship with a co-worker or felt to fire you, or to assign you to another location or position if you do not go out on a date with him or if you do not engage pressured to do so because of fear of losing your job, you in certain sexual acts. E.g., you were hired to provide house are not obligated to continue that relationship.

cleaning services and then asked to provide a massage for your employer. Additionally, acts of sexual harassment do not have to be directed at you. For example, sexual harassment could

• Unwanted physical or verbal conduct that creates a hostile

work environment such as sexually offensive comments be the result of a poster on a co-worker’s wall or from or jokes, gestures, leering or staring, using sexual slurs, comments between coworkers made in passing.

Who is Protected by the Law?

In New York State and New York City, all employers must comply now apply to all employers, regardless of the size of your with laws that prohibit sexual harassment, so you have the right employer. to be free from sexual harassment regardless of the size of your employer, regardless of your immigration status, and even if IMMIGRATION STATUS: You have the same right you are the only person who works for your employer such as a to work in an environment free from sexual harassment domestic worker.17 In New York State, protections now apply to regardless of your immigration status. Of course, your anyone who provides services in a workplace based on a contract, employer may still unlawfully retaliate against you for including contractors, subcontractors, vendors, consultants, or reporting so you should seek assistance from a lawyer or anyone providing services in the workplace. Protected individuals advocate to determine how best to respond. For assistance, include independent contractors, “gig” workers, temporary visit the Additional Resources section at the back of this workers, and persons providing equipment repair or cleaning Toolkit.

services. Note also that if you are an immigrant victim of certain NOTE: The law in New York State now protects against crimes, you may qualify for a special visa to stay in the harassment not just based on your sex or gender but based country and obtain a green card. For example, you may on any protected characteristics such as race and national qualify for a U Visa if you are an immigrant victim of origin.18 This also applies to domestic workers.19 certain violent or sexual crimes and you are willing to assist law enforcement in a criminal investigation or NYC: In New York City, protections against harassment prosecution. Alternatively, you may qualify for a T Visa to based on your gender-identity, including sexual harassment, obtain lawful status and employment authorization if you 18 © 2024 Legal Momentum tnemssaraH lauxeS

are a survivor of sex or labor trafficking and you are willing sexual harassment because you may fear that your employer to assist law enforcement in a criminal investigation and/or will fire you. If you are subjected to sexual harassment or prosecution. For more information, visit the Department of encounter unsafe or uncomfortable conditions, document Labor: https://www.dol.gov/general/immigration/u-t-visa or the behavior (see the next section for more guidance on contact an attorney with expertise in immigration matters. how to document). Even if you do not think the conduct is serious enough to meet the legal definition but it makes you feel uncomfortable, you can take steps to try to address it.

DOMESTIC WORKERS: If you are a domestic worker Consider reaching out to the National Domestic Workers (i.e., someone working for another person caring for children Alliance or a local community based group or worker center or an elderly person, keeping a home, or doing other domestic for assistance to help you strategize about how to address jobs in the home), then you are covered by protections that prohibit sexual and other forms of harassment. It is unlawful the problem without leaving your job. See our Additional for your employer to threaten or base your employment on Resources section for more information.

your submission to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual FARMWORKERS: If you are a farmworker in New York nature.20 State, you are equally covered by the protections against If you are a domestic worker, it can be difficult to report sexual harassment described above.21

What are My Legal Rights?

In New York State, you have the right to work in an environment impacts your job. In New York City, however, retaliation includes any free from sexual harassment, which is a form of sex action taken by the employer which could discourage you, or other discrimination.22 employees, from reporting sexual harassment.

Your employer must ensure that sexual harassment does not Note that while retaliation is illegal, your employer may still do it. negatively impact your employment, meaning your employer cannot Retaliation is a separate offense so your employer could be found fire you, refuse to hire you, pay you less, or reduce your work hours guilty of punishing you for reporting sexual harassment even if based on how you respond to sexual harassment at work. your employer is not found guilty of the sexual harassment itself.

As a result, your employer may be required to pay you damages. This also means that your employer or other actors (e.g., executives, managers, supervisors, co-workers, or clients) are Note, however, that you must still comply with legitimate prohibited from engaging in unwelcome sexual conduct that workplace rules, and you can still be subject to discipline or creates a hostile working environment. Note that conduct does adverse action for non-compliance or poor performance.

not have to be “severe or pervasive.” While conduct must still be In other words, it is unlawful for your employer to fire you, demote more than “petty slights or trivial inconveniences”, based on the you, suspend you, cut your pay or work hours, assign you more new standard in New York State, your employer cannot subject difficult work duties, or start issuing poor performance evaluations you to inferior terms, conditions, or privileges of employment.23 to punish you for reporting sex discrimination. Retaliation can also Your employer not only has a responsibility to refrain from sexual include more intensive or critical supervision, surveillance, or bad- harassment, it has a duty to investigate complaints. Your employer mouthing you to other employees.

must take immediate and appropriate action to correct sexual POLICIES & TRAINING: In New York State, all employers harassment and must also take reasonable steps to prevent it. must now adopt a sexual harassment prevention policy and must Failure to do so means your employer is violating the law. conduct an annual interactive training on sexual harassment.24 NYC: If you work for an employer in NYC, conduct similarly Your employer’s policy must set forth clear steps on how and to does not have to be severe or frequent to create a hostile whom you can report and must include a written form that you work environment. Thus, if an employer treats you less well can complete to report sexual harassment. Your employer must than your co-workers because you rejected the employer’s also include a procedure to ensure your complaint is investigated sexual advances or requests, you may have a claim under the confidentially and in a timely manner, and in a way that is fair law in New York City. to all parties. The policy must also provide you with information regarding the applicable laws and on how to file a lawsuit or file RETALIATION: It is unlawful for your employer to engage in a complaint with an administrative agency. You should review “retaliation” (punish you) for reporting sexual harassment, objecting this policy to see what steps your employer must take to combat to sexual harassment (for example, providing support to a co- sexual harassment in the workplace. Your employer must provide worker who reports sexual harassment), filing a complaint or you with a copy of its policy and training material in English and lawsuit, or participating in an investigation. Remember, in New York in your primary language when you are hired and annually during State, retaliation is prohibited if it results in action that negatively your training.25 tnemssaraH lauxeS

While taking action can be intimidating, you should never have workers, and intervene. The more people who speak out to work in an environment where you are subjected to sexual to combat sexual harassment in your workplace, the less harassment, which can result in anxiety, depression, fear, and isolating and acceptable it becomes. If you are a supervisor disempowerment. If you have concerns or believe your rights and you receive a complaint about sexual harassment, find have been violated, there are various actions you can take to out what steps you must take and report the conduct so that advocate for yourself. Consider contacting an advocate for appropriate actions can be taken by your employer. assistance to strategize ways to address sexual harassment and if you want to report, to figure out how to navigate the FILE AN ADMINISTRATIVE COMPLAINT: If you made a process with your employer and beyond. sexual harassment complaint with your employer and feel like your employer did not take corrective action to address it, you You can contact Legal Momentum’s Helpline at can file a formal administrative complaint with your local fair (212) 925-6635, ext. 650 or help@legalmomentum.org or visit employment agency, the New York State Division of Human our Additional Resources section at the end of this Toolkit. Rights (https://dhr.ny.gov/contact-us), and/or the federal Equal Employment Opportunity Commission (EEOC) (https://www. In addition to the general guidance in Section 1, consider the eeoc.gov//field/newyork/charge.cfm). You must do so quickly following: in order to comply with applicable reporting deadlines. As of MAKE CLEAR THAT SEXUAL HARASSMENT IS July 14, 2022, the New York State Division of Human Rights UNWELCOME: It is important to make clear that sexual will operate a toll-free confidential hotline for complaints of workplace sexual harassment, which can connect you with pro harassment is unwelcome. Even if you submitted to certain bono attorneys who can advise you of your legal rights.26 You behavior in the past, you can always change course and make can reach the hotline at 1-800-HARASS-3. it known that the behavior is unwanted. In New York State, if you want to file a federal complaint with DOCUMENT THE HARASSMENT: You may have to show the EEOC, you generally must do so within 300 calendar days that conduct was frequent or severe, so try to document from the most recent date of the harassment. To file a state everything that happens in detail. complaint with the New York State Division of Human rights, you CONTACT LAW ENFORCEMENT, IF NECESSARY: generally must file your complaint within one year from the date Keep in mind that certain acts such as unwanted physical of the harassment. As of August 12, 2020, you will have three touching, forced confinement, or forced sex acts may rise years from the date of harassment to file any sexual harassment to the level of a crime, which can be reported to local police complaint at the state level.27 Local agencies have different and can result in the criminal prosecution of your harasser. deadlines as well. And certain localities like New York City If you are working without work authorization and concerned provide longer filing deadlines for sexual harassment claims. about how reporting will affect you, contact a lawyer or legal Keep in mind, however, that figuring out the deadline that advocate. See the Additional Resources section at the end of applies to you can be a complex determination, involving various factors, so consult an attorney for guidance. this Toolkit for more information. INTERVENE IN SUPPORT OF OTHERS: You do not need As of March 3, 2022, under federal law, you have the right to to be the victim of sexual harassment in order to report it sue for sexual harassment or sexual assault in court even if you or take action. If you are a bystander who witnesses sexual previously signed an arbitration agreement with your employer harassment, it is important to speak up, support your co- that requires you to resolve a dispute in arbitration.28.

For more information, visit: https://www.ny.gov/programs/ work, and how to appropriately address sexual harassment combating-sexual-harassment-workplace. complaints. All employers in NYC must post an anti-sexual harassment poster outlining rights and responsibilities under NYC: Starting on April 1, 2019, If you work for a city agency or the law. If you work for a city agency, your employer must a private employer in New York City with 15 or more employees, now report annually on the number of sexual harassment your employer’s annual anti-sexual harassment training must complaints received and the outcomes of those complaints. This include information about bystander intervention. Your employer must also train supervisory and managerial employees on their information will be publicly available on the NYC Commission on responsibility to prevent sexual harassment and retaliation at Human Rights’ website.

20 © 2024 Legal Momentum tnemssaraH lauxeS to work in an environment where you are subjected to sexual to combat sexual harassment in your workplace, the less harassment, which can result in anxiety, depression, fear, and isolating and acceptable it becomes. If you are a supervisor disempowerment. If you have concerns or believe your rights and you receive a complaint about sexual harassment, find have been violated, there are various actions you can take to out what steps you must take and report the conduct so that advocate for yourself. Consider contacting an advocate for appropriate actions can be taken by your employer.

assistance to strategize ways to address sexual harassment and if you want to report, to figure out how to navigate the FILE AN ADMINISTRATIVE COMPLAINT: If you made a process with your employer and beyond. sexual harassment complaint with your employer and feel like your employer did not take corrective action to address it, you You can contact Legal Momentum’s Helpline at can file a formal administrative complaint with your local fair (212) 925-6635, ext. 650 or help@legalmomentum.org or visit employment agency, the New York State Division of Human our Additional Resources section at the end of this Toolkit. Rights (https://dhr.ny.gov/contact-us), and/or the federal Equal Employment Opportunity Commission (EEOC) (https://www.

In addition to the general guidance in Section 1, consider the eeoc.gov//field/newyork/charge.cfm). You must do so quickly following: in order to comply with applicable reporting deadlines. As of MAKE CLEAR THAT SEXUAL HARASSMENT IS July 14, 2022, the New York State Division of Human Rights UNWELCOME: It is important to make clear that sexual will operate a toll-free confidential hotline for complaints of workplace sexual harassment, which can connect you with pro harassment is unwelcome. Even if you submitted to certain bono attorneys who can advise you of your legal rights.26 You behavior in the past, you can always change course and make can reach the hotline at 1-800-HARASS-3.

it known that the behavior is unwanted. In New York State, if you want to file a federal complaint with DOCUMENT THE HARASSMENT: You may have to show the EEOC, you generally must do so within 300 calendar days that conduct was frequent or severe, so try to document from the most recent date of the harassment. To file a state everything that happens in detail.

complaint with the New York State Division of Human rights, you CONTACT LAW ENFORCEMENT, IF NECESSARY: generally must file your complaint within one year from the date Keep in mind that certain acts such as unwanted physical of the harassment. As of August 12, 2020, you will have three touching, forced confinement, or forced sex acts may rise years from the date of harassment to file any sexual harassment to the level of a crime, which can be reported to local police complaint at the state level.27 Local agencies have different and can result in the criminal prosecution of your harasser. deadlines as well. And certain localities like New York City If you are working without work authorization and concerned provide longer filing deadlines for sexual harassment claims.

about how reporting will affect you, contact a lawyer or legal Keep in mind, however, that figuring out the deadline that advocate. See the Additional Resources section at the end of applies to you can be a complex determination, involving various factors, so consult an attorney for guidance. this Toolkit for more information.

INTERVENE IN SUPPORT OF OTHERS: You do not need As of March 3, 2022, under federal law, you have the right to to be the victim of sexual harassment in order to report it sue for sexual harassment or sexual assault in court even if you or take action. If you are a bystander who witnesses sexual previously signed an arbitration agreement with your employer harassment, it is important to speak up, support your co- that requires you to resolve a dispute in arbitration.28

Equal Pay: The law prohibits employers from paying you less because of your sex or gender. This type of treatment is a form of sex discrimination. Your employer is also prohibited from punishing you for discussing or disclosing rates of pay with your colleagues, and, depending on where you work, an employer may be prohibited from asking about or relying on your prior salary to set your new salary..

21. © 2024 Legal Momentum. Equal Pay: We still are not paid equally. And if you believe that it’s a myth, do the math. Unequal pay hurts women. It hurts their families. And it hurts us all. You and I have to continue fighting for equal pay for equal work. I get up each day with that on my mind, because I need to make a difference.” – Lilly Ledbetter, Plaintiff in Ledbetter v. Goodyear Tire & Rubber Co., which resulted in Congress passing the Lilly Ledbetter Fair Pay Act of 2009 © 2024 Legal Momentum 21.

The law prohibits employers from paying you less because of your sex or gender. This type of treatment is a form of sex discrimination. Your employer is also prohibited from punishing you for discussing or disclosing rates of pay with your colleagues, and, depending on where you work, an employer may be prohibited from asking about or relying on your prior salary to set your new salary.

We still are not paid equally. And if you believe that it’s a myth, do the math. Unequal pay hurts women. It hurts their families. And it hurts us all. You and I have to continue fighting for equal pay for equal work. I get up each day with that on my mind, because I need to make a difference.” – Lilly Ledbetter, Plaintiff in Ledbetter v. Goodyear Tire & Rubber Co., which resulted in Congress passing the Lilly Ledbetter Fair Pay Act of 2009

What Qualifies as Unequal Pay?

You should never be paid less because you are a woman. you (like many women) were paid less in your past job and your Receiving lower pay based on your sex or gender is a form of employer asked about your prior salary and used that salary as sex discrimination. All too often, however, women are paid less a basis to set your new salary when hiring you.

than their male colleagues doing similar work, and they are often unaware of this fact because workers are discouraged from • Although you have the same title and job responsibilities as sharing or discussing salaries. Moreover, since women have your male colleague, your employer pays him more, claiming he historically made less money, women often start new positions has more experience, even though you know that he previously at a lower salary and with less bargaining power than their male worked in a different field and had less relevant experience than peers when negotiating their new salary. This trend further you do. Or, your employer pays him more telling you, “He has a depresses salaries for women. family to support.” There are various ways in which an employer may engage in • Your employer gives your male coworker, who has the same title, discriminatory pay practices. a raise but decides not to give you a raise, despite your similar years of experience, because you took parental leave or worked Below are a few of many examples: part-time to care for a child. You employer may even say, “Let’s wait to talk about raises until you have come back full-time.”

• Your employer pays you less than your male colleague because

Who is Protected by the Law?

Federal law prohibits all employers from engaging in pay NYC: In New York City, pay discrimination is illegal as a form discrimination based on gender.29 New York State law of gender discrimination under the New York City Human prohibits employers from engaging in pay discrimination Rights Law, which covers both private and government based on gender. NYS law now also prohibits pay employees who work for employers with discrimination based on any other protected characteristic.30 4 or more employees.31

What are My Legal Rights?

Equal Pay fide factor other than sex,” they must demonstrate that the factor is not based on a sex-based differential, is job-related, and is Under federal and state laws, you can bring an equal pay consistent with business necessity. complaint as well as a sex discrimination complaint. Under the Even if they prove this, you can still win, if you can show that the equal pay laws (unlike the anti-discrimination laws) you do not practice has a disproportionate impact on the basis of your sex, need to prove that your employer intentionally discriminated that your employer could have served the same purpose without against you on the basis of your sex or gender.

causing that impact, and that your employer refused to adopt Covered employers are prohibited from paying you a lower rate of such an alternative practice.34 Your employer may be responsible pay than a male colleague if you are doing substantially equal work for correcting the pay differential and may be responsible for (under federal law) or substantially similar work (under New York additional damages if it violates the law.

State law) taking into account skill, effort, and responsibility on jobs DISCUSSING SALARIES: In New York State, employers are performed under similar working conditions.32 Protections cover all also prohibited from stopping or preventing you from asking forms of compensation including salary, overtime pay, bonuses, stock about, discussing, or disclosing pay with your co-workers and options, profit sharing, life insurance, and other benefits.

cannot punish you for doing so. Your employer can still pay you a different rate based on factors PAY TRANSPARENCY: As of November 2022, employers such as seniority, merit, quantity or quality of production, or a in New York City with four or more employees, or one or more “bona fide factor other than sex, such as education, training, or domestic workers, must disclose the minimum and maximum experience,” which are job-related.33 If your employer raises one salary in any advertisement for a job, transfer, or promotion of these factors as a defense, be sure to do your own assessment opportunity. Failure to do so constitutes discrimination under of your education, training, or experience. You may be able to New York City Human Rights Law, and you can file a complaint raise factors that your employer was not considering. Additionally, about employers that fail to post their salary range with the NYC if your employer claims that your lower pay is based on a “bona Commission on Human Rights.35 22 © 2024 Legal Momentum yaP lauqE

If you have concerns or believe that your rights have been ADVOCATE FOR YOURSELF: Many women often assume violated, there are various actions you can take to advocate they will be rewarded based on merit and hard work and are for yourself. In addition to the general guidance in Section 1, well into their careers before they realize that their colleagues consider the following: (often men) received raises because they actively requested them. If you believe that you deserve a raise, speak with your SPEAK TO YOUR CO-WORKERS: Because many supervisor and request one. Be prepared to discuss the work employers have historically relied on job applicants’ salary that you do, your responsibilities, accomplishments, skills, history to set the salary for a new position and because men performance, the ways in which you have excelled, and the have historically been paid more, on average, than women, you value you bring to the workplace. may be making less than your male colleagues. If you have concerns that you are being paid less than a male colleague NOTIFY YOUR EMPLOYER AND REQUEST THAT who is doing the same or similar type of work, one option is THE PAY DIFFERENTIAL BE CORRECTED: If you learn to ask your co-worker about his salary. Note that your co- that you are being paid less than a male co-worker and you worker is not obligated to disclose this information and may don’t think there is a valid rationale for the pay differential, choose not to do so. Also be aware that while employers are then you should speak to your supervisor and request that it legally prohibited from retaliating against you for speaking be corrected. Before doing so, try to get as much information to your coworkers about salary, this does not mean that your as you can about your male co-worker’s past experience, employer will follow the law. Your employer may still engage in your titles, classifications, and the responsibilities and skills retaliation. required in your job description. © 2024 Legal Momentum © 2024 Legal Momentum.

As of September 17, 2023, employers in New York State with you can try to reframe the conversation by discussing your salary four or more employees must also disclose the compensation expectations based on the requirements and responsibilities of the or compensation range for any job, promotion, or transfer job, noting that they differ from your prior work, and ask questions opportunity, as well as a job description (if one exists). You can about the salary range set for the position.

file a complaint about employers that fail to post their salary NYC: For more information, visit: https://www1.nyc.gov/site/ cchr/media/salary-history-frequently-asked-questions.page. Requesting or Relying Upon Prior Salary Note that certain localities, including New York City, Westchester County, Suffolk County, and Albany County passed their own Because women have been paid less, on average, than men over salary history laws, which may include stronger protections.

time, various localities and now New York State have passed RETALIATION: It is illegal for an employer to engage in laws that limit an employer’s ability to ask and/or rely upon “retaliation” (to punish you) for reporting pay discrimination, applicants’ salary history during the hiring process. The purpose sharing salary information, filing a complaint or lawsuit, or of these laws is to stop the cycle of inequality from continuing by participating in an investigation. In other words, your employer preventing employers from relying on prior salary disparities to is prohibited from firing you, demoting you, suspending you, set applicants’ future salaries.

cutting your pay or work hours, assigning you more difficult As of January 6, 2020, if you are applying for a job in New York work duties, or starting to issue poor performance evaluations State, regardless of the size of your employer, it is illegal for to punish you for reporting discrimination. Retaliation can also an employer to ask you how much you were paid in your prior include more intensive or critical supervision, surveillance, or positions during the hiring process or to rely upon your salary bad-mouthing you to other employees.

history to determine your salary during the hiring process.37 Note that even though retaliation is illegal, your employer Keep in mind, that certain exceptions may apply based on your may still do it. Retaliation is a separate offense from pay employment status, contract, or collective bargaining agreement.

discrimination. Therefore, even if a court determines that there An employer can still ask you about your expectations regarding was no pay discrimination, if an employer retaliated against salary and benefits. While you should not be prompted, you are you, they have violated the law and may be required to pay you permitted to voluntarily disclose your prior salary, which can then damages and attorneys’ fees.