Senate Bill S5592A

                                BILL NUMBER:S5592A

TITLE OF BILL:  An act to amend the labor law, in relation to the New
York state equal pay act

PURPOSE OR GENERAL IDEA OF BILL: To include governmental entities and
to make the predominance of a gender in an occupational title an issue
of fact

SUMMARY OF SPECIFIC PROVISIONS: Section 1 of this bill would amend the
definition of employer to include governmental entities.

Section 2 of this bill would make the determination as whether an
occupation is predominantly of one sex versus the other an issue of
fact. A simple majority would be the only minimum qualification for
the purposes of deciding whether a group of employees is actually
predominated by a certain gender.

Section 3 of this bill allows a suit to be brought either by an
individual or a representative organization.

JUSTIFICATION: Despite the enactment of the federal Equal Pay Act and
the state Equal Pay Law in 1963 and 1966 respectively there are still
incidences of discrimination in pay based on sex. In the state of New
York those who are being discriminated against by a public employer
are forced to seek redress in the federal courts because governmental
              

agencies are exempted under state law.

In 1960, the legislature repealed the exemption of the law applicable
to domestic workers, farm workers and those employed at not for profit
corporations and associations, This change was made despite the fact
that federal law at the time provided general coverage for all 3
categories of these workers. The availability of a federal remedy did
not stop the state legislature from removing these exemptions from the
statute. However, the exemption that continued to survive was that
exempting governmental bodies from the law's applicability. So, thirty
years later we still have a situation where public sector workers have
no legal redress for sex-based pay differentials in our state courts.

Government employers are no better than private actors when it comes
to discrimination in pay based on gender. As it stands, the New York
Equal Pay Law may be useless hi one of the most important women's
equal pay act cases presently being litigated in the United In Andrews
et al v. City of New York (Case No. 10-C1V-2426 (SETS) (MD) SDNY),
female School Safety Agents (SSA) were compelled to file suit in
federal court against the City of New York because they were barred
from doing so in state court. They are currently fighting at least a
$7000 differential in pay between their title and that of the
male-dominated Special Officers who virtually perform the same job.
Even at the federal level there is no guarantee that they will be
allowed to present their case to a jury despite the fact that the SSA
title is 70% female and the Special Officer title is 66% male.

A common defense in these types of cases is for employers to claim
that there is no real discrimination because the lower paid title has
at least some members of the opposite sex. The employer in Schulte v.
State of New York, 353 F. Supp 31 (EDNY, 1991) was able to convince a


judge to rule against a group of women in a job title that was 715
female versus a similar title that was 675 male. The judge found that
because there was such a substantial representation of the minority
sex within each job, even if they performed identical work the fact
that they were paid different salaries did not establish
discrimination. These women never got a chance to present their case
to a jury.

This bill would not only allow governmental entities to be sued in
state court for gender-based pay discrimination but it would also
allow a jury to decide on its own whether similar job titles are
predominated by the opposite sex.

PRIOR LEGISLATIVE HISTORY: New Bill

FISCAL IMPLICATIONS: Only those costs normally associated with
defending against any lawsuit which can already be filed in federal
court. Whether an additional venue for plaintiffs will increase costs
would he difficult to quantify or determine.

EFFECTIVE DATE: Thirty days after enactment.