(a) the term "protected class" includes 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, and
any employee protected from discrimination pursuant to paragraphs (a),
(b), and (c) of subdivision one of section two hundred ninety-six of the
executive law, and any intern protected from discrimination pursuant to
section two hundred ninety-six-c of the executive law.
(b) the term "compensation" shall include but not be limited to: all
earnings of an employee for labor or services rendered, regardless of
whether the amount of earnings is paid on an annual salary, hourly,
biweekly or per diem basis; reimbursement for expenses; health, welfare
and retirement benefits; and vacation pay, sick pay, separation or
holiday pay, or any other form of remuneration.
(c) employees shall be deemed to work in the same establishment if the
employees work for the same employer at workplaces located in the same
geographical region, no larger than a county, taking into account
population distribution, economic activity, and/or the presence of
municipalities.
(d) the term "public authorities" shall mean any authority as defined
in section two of this title.
3. (a) It shall not be a violation of this section for an employer to
pay different compensation to employees, where such payments are made
pursuant to:
(1) a bona fide seniority or merit system;
(2) a bona fide system that measures earnings by quantity or quality
of production;
(3) a bona fide system based on geographic differentials;
(4) any other bona fide factor other than status within one or more
protected class or classes, such as education, training, or experience.
Such factor: (A) shall not be based upon or derived from a differential
in compensation based on status within one or more protected class or
classes; and (B) shall be job-related with respect to the position in
question and shall be consistent with business necessity. Such exception
under this paragraph shall not apply when the employee demonstrates (i)
that an employer uses a particular employment practice that causes a
disparate impact on the basis of status within one or more protected
class or classes, (ii) that an alternative employment practice exists
that would serve the same purpose and not produce such differential, and
(iii) that the employer has refused to adopt such alternative practice;
or
(5) a collective bargaining agreement.
(b) For the purpose of paragraph (a) of this subdivision, "business
necessity" shall be defined as a factor that bears a manifest
relationship to the employment in question.
(c) Nothing set forth in this section shall be construed to impede,
infringe or diminish the rights and benefits which accrue to employees
through collective bargaining agreements, or otherwise diminish the
integrity of the existing collective bargaining relationship.