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Here at Miletti Law®, we are the authoritative force in Employment and Labor Law. Therefore, we are committed to updating our series on employment & labor law with fresh, verifiable, and credible content. In that spirit, this blog is Part VI of our series on New York State and City laws that apply to the issues of workplace harassment, discrimination, & retaliation. In Part V of this series, we hammered on “Prohibitions,” particularly any conduct that is prohibited by these laws.

Remaining on the same track, it is crucial to note that in New York, harassment claims, disparate impact claims, and disparate treatment claims are recognized by the jurisdiction’s three laws that include the New York City Human Rights Law (NYCHRL), NYC Administrative Code 8-101 et seq, the New York Equal Pay Act (N.Y. Lab. Law § 194), and the New York State Human Rights Law (NYSHRL) (N.Y. Exec. Law § 290 et seq.).

Accordingly, in order to move the discussion forward, this blog covers, with respect to “Liability Standards,” “Disparate Treatment Claims,” as recognized under each of these three New York City and State laws.

Disparate Treatment Claims

NYCHRL

The NYCHRL is very comprehensive in its recognition of disparate treatment claims. Notably, the interpretation of disparate treatment claims is broader in favor of employees as compared to their federal and state counterparts. The manner in which the state and federal civil rights statutes are interpreted is the bottom line below which the NYCHRL cannot fall. This implies that for the courts, independent and separate analysis of NYCHRL claims should be conducted, as it concerns state or federal law claims. Accordingly, in order to accomplish the law’s uniquely remedial and broad purposes, courts have the mandate to construe the NYCHRL’s provisions liberally.

New York courts have persistently applied frameworks such as the McDonnell Douglas burden-shifting framework (recognized by the United States Supreme Court), which have been applied to disparate treatment claims brought under state and federal law by other courts when validating the mandate to analyze discrimination claims brought under the NYCHRL independently. At the same time, they should adopt the mixed-motive framework (recognized in some federal cases) and the United States Supreme Court’s McDonnell Douglas framework to analyze a disparate treatment action brought for summary judgment under the NYCHRL on a motion.

An employer may plead and demonstrate their compliance with the procedures, programs, and policies for detecting and preventing prohibited discriminatory conduct if the employer is found liable, solely on the basis of the conduct of an independent contractor, agent, or employee (but any of these persons has very few prior instances or does not have a record for discriminatory practice to mitigate punitive damages or civil penalties) for a discrimination claim under the NYCHRL’s NYC Administrative Code 8-107, subd. 1(a). Through the directive Intro 814-A signed by Mayor William de Blasio on March 28, 2016, courts have been guided to analyze cases brought under the NYCHRL with the goal of maximizing discriminatory conduct deterrence.

New York Equal Pay Act

Sex discrimination under the federal Equal Pay Act has been established through what is known as a three-stage burden-shifting test. This is the same test being applied by New York courts to actions brought under the New York Equal Pay Act. Provided the wage difference between an aggrieved employee and a similarly situated employee is made pursuant to a number of systems, an employer may prevent the violation of the New York Equal Pay Act. Such systems include (1) a merit system, (2) a seniority system, (3) a system that utilizes quality or quantity of production to measure earnings, and (4) any other bona fide factor such as experience, training, or education (effective October 8, 2019), other than an individual’s status within one or more protected classes. However, the New York Equal Pay Act makes it clear that such a factor:

  • Must be consistent with a business necessity.
  • Must be job-related with respect to the position in question.
  • Cannot be derived from or based upon wage difference depending on status within one or more protected classes.

Moreover, the exception is considered null and inapplicable if it is demonstrated by an employee that:

  • The employer refuses to adopt this alternative employment practice.
  • There exists an alternative employment practice that would, without resulting in a disparate impact, serve a similar business purpose.
  • A particular employment practice used by the employer causes a disparate impact based on the employee’s status within one or more protected classes.

NYSHRL

As mentioned earlier, the NYSHRL recognizes disparate treatment claims. When evaluating employment discrimination claims brought under the NYSHRL, New York courts have adopted the McDonnell Douglas mentioned above. While they are reviewed under the same standard, the analysis of discrimination claims brought under the NYSHRL is identical to claims brought under Title VII of the Civil Rights Act of 1964. Accordingly, claims brought under Title VII and those brought under the NYSHRL are applied the same standards.

In the context of summary judgment, the “mixed-motive” framework has been recognized and adopted by New York courts to analyze discrimination claims brought under the NYSHRL. Generally, provided that a bona fide occupational qualification is the basis for using such practices, employers are permitted by clause N.Y. Exec. Law § 296(1)(a) to engage in particular practices that might otherwise be condemned as discriminatory. However, the employer must bear the burden of proving entitlement to the exception. Under the NYSHRL, unless an employer becomes a party to an employee’s discriminatory act by approving, condoning, or encouraging it, such an employer cannot be held liable for the discriminatory act. This is a significant distinction between New York state law and federal law.

In Part VII of this series, we shall hammer on “Disparate Impact Claims,” as it concerns Individual Liability under the same three New York laws that apply to the issues of workplace harassment, discrimination, & retaliation.

Stay tuned for more legal guidance, training, and counsel until then. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.