§ 194. Differential in rate of pay because of protected class status\nprohibited. 1. No employee with status within one or more protected\nclass or classes shall be paid a wage at a rate less than the rate at\nwhich an employee without status within the same protected class or\nclasses in the same establishment is paid for: (a) equal work on a job\nthe performance of which requires equal skill, effort and\nresponsibility, and which is performed under similar working conditions,\nor (b) substantially similar work, when viewed as a composite of skill,\neffort, and responsibility, and performed under similar working\nconditions; except where payment is made pursuant to a differential\nbased on:\n (i) a seniority system;\n (ii) a merit system;\n (iii) a system which measures earnings by quantity or quality of\nproduction; or\n (iv) a bona fide factor other than status within one or more protected\nclass or classes, such as education, training, or experience. Such\nfactor: (A) shall not be based upon or derived from a differential in\ncompensation based on status within one or more protected class or\nclasses and (B) shall be job-related with respect to the position in\nquestion and shall be consistent with business necessity. Such exception\nunder this paragraph shall not apply when the employee demonstrates (1)\nthat an employer uses a particular employment practice that causes a\ndisparate impact on the basis of status within one or more protected\nclass or classes, (2) that an alternative employment practice exists\nthat would serve the same business purpose and not produce such\ndifferential, and (3) that the employer has refused to adopt such\nalternative practice.\n 2. For the purpose of subdivision one of this section: (a) "business\nnecessity" shall be defined as a factor that bears a manifest\nrelationship to the employment in question, and (b) "protected class"\nshall include age, race, creed, color, national origin, sexual\norientation, gender identity or expression, military status, sex,\ndisability, predisposing genetic characteristics, familial status,\nmarital status, or domestic violence victim status, and any employee\nprotected from discrimination pursuant to paragraphs (a), (b), and (c)\nof subdivision one of section two hundred ninety-six and any intern\nprotected from discrimination pursuant to section two hundred\nninety-six-c of the executive law.\n 3. For the purposes of subdivision one of this section, employees\nshall be deemed to work in the same establishment if the employees work\nfor the same employer at workplaces located in the same geographical\nregion, no larger than a county, taking into account population\ndistribution, economic activity, and/or the presence of municipalities.\n 4. (a) No employer shall prohibit an employee from inquiring about,\ndiscussing, or disclosing the wages of such employee or another\nemployee.\n (b) An employer may, in a written policy provided to all employees,\nestablish reasonable workplace and workday limitations on the time,\nplace and manner for inquires about, discussion of, or the disclosure of\nwages. Such limitations shall be consistent with standards promulgated\nby the commissioner and shall be consistent with all other state and\nfederal laws. Such limitations may include prohibiting an employee from\ndiscussing or disclosing the wages of another employee without such\nemployee's prior permission.\n (c) Nothing in this subdivision shall require an employee to disclose\nhis or her wages. The failure of an employee to adhere to such\nreasonable limitations in such written policy shall be an affirmative\ndefense to any claims made against an employer under this subdivision,\nprovided that any adverse employment action taken by the employer was\nfor failure to adhere to such reasonable limitations and not for mere\ninquiry, discussion or disclosure of wages in accordance with such\nreasonable limitations in such written policy.\n (d) This prohibition
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