A. Overview of Applicable Statutes

• Jurisdiction: New York

A. Overview of Applicable Statutes

With the decline in union representation over the past three decades, particularly in the private sector, it is more likely that a general practitioner will encounter cases and issues relating to allegations by individual employees of unlawful employment discrimination or retaliation.

A variety of federal, state and local laws prohibit employment discrimination and retaliation against certain groups and activities in addition to the statutory protections for concerted activities under collective bargaining laws.²⁹ Unions and employment agencies are also subject to the prohibitions against employment discrimination and retaliation.³⁰

It is important for the general practitioner to consult the various published treatises and the regulations promulgated by the United States Equal Employment Opportunity Commission (EEOC), as well as state and local agencies, because they provide important insights concerning the interpretation and application of the different anti-discrimination laws.

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to refuse to hire, discharge or to take other adverse personnel action because of an individual's race, color, religion, sex or national origin.³¹ Another important federal statute in the area of race discrimination is 42 U.S.C. § 1981, enacted shortly after the Civil War.³² Prohibitions against age discrimination in the workplace under the federal Age Discrimination in Employment Act of 1967 (ADEA),³³ the New York State Human Rights Law,³⁴ and the New York City (N.Y.C.) Human Rights Law³⁵ are discussed later in this Part.

The Americans with Disabilities Law Act of 1990 (ADA)³⁶ and § 504 of the Rehabilitation Act of 1973³⁷ prohibit discrimination against individuals with disabilities as well as those perceived to be disabled. The scope of federal and state protections in disability discrimination are described later in the Part.

The federal Equal Pay Act prohibits discrimination in pay on the basis of sex in the same establishment for equal work.³⁸ New York recently expanded its equal pay statute,³⁹ effective October 8, 2019, which now prohibits employers from paying employees in any protected classes (including age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status) wages that are less than the wages of other employees who (1) are not within those protected classes, and (2) perform equal work on a job that requires equal skill, effort, and responsibility, or "substantially equal work," when viewed as a composite of skill, effort, and responsibility, under similar working conditions.⁴⁰ New York also recently adopted legislation that generally prohibits employers from (1) requesting wage or salary history of an applicant or current employee, (2) relying on the wage or salary history of an applicant in offering employment or determining an employee's wages or salary, and (3) retaliating against an applicant or employee based on wage or salary history.⁴¹

Both federal and state law regulate employer use of employee genetic information. Pursuant to Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), employers are prohibited from discriminating against individuals based on the genetic information of the individual or that individual's family members. EEOC has issued regulations implementing Title II of GINA.⁴² The New York State Human Rights Law includes distinct provisions relating to discrimination based on the genetic predisposition of an individual.⁴³ While the prohibitions against genetic-based employment discrimination are important developments, the general practitioner should be aware that very few cases have been filed alleging this form of discrimination. The N.Y.S. Division of Human Rights (SDHR) has jurisdiction over most New York State discrimination laws. The New York State Human Rights Law, in addition to prohibiting employment discrimination based on race, creed, color, sex, national origin, age, disability and predisposing genetic characteristics, bars discrimination on the basis of sexual orientation, marital status, military status, familial status, criminal conviction, arrest record, and domestic violence victim status.⁴⁴ It is also an unlawful discriminatory practice to refuse to provide a reasonable accommodation for the known disabilities or pregnancy related conditions of an employee or applicant.⁴⁵

The number of protected categories under the New York State Human Rights Law, in comparison to federal anti-discrimination laws, reflects...