§ 700.03. Unlawful discriminatory practices in employment.

a.

It shall be an unlawful discriminatory practice:

1.

For an employer or an employee or an agent thereof to refuse to hire or employ or bar or discharge from employment any person because of such person's actual or perceived group identity or because of such person's status as a victim of domestic violence, sexual abuse or stalking, or to discriminate against any person in compensation or in terms, conditions or privileges of employment because of such person's actual or perceived group identity or because of such person's status as a victim of domestic violence, sexual abuse or stalking.

2.

For an employment agency or an employee or agent thereof to discriminate against a person, because of such persons actual or perceived group identity or because of such person's status as a victim of domestic violence, sexual abuse or stalking, in receiving, classifying, disposing or otherwise acting upon applications for its services or in referring an applicant for its services to an employer.

3.

For a labor organization, or an employee or agent thereof, to exclude or to expel from its membership an individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer because of such individual's actual or perceived group identity or because of such person's status as a victim of domestic violence, sexual abuse or stalking, including, but not limited to, discrimination in admission to or participation in apprenticeship or other occupational training or retraining programs.

4.

For any employer, labor organization, or employment agency, or an employee or agent of an employer, labor organization or employment agency, to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses directly or indirectly, any limitation, specification or discrimination as to group identity or because of such person's status as a victim of domestic violence, sexual abuse or stalking, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupational qualification.

5.

For an employer or an employee or an agent thereof to impose upon a person as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such person to violate, or forego a practice of his or her religion which practice he or she regularly and customarily observes, including but not limited to the observance of any particular day or days or any portion thereof as a Sabbath or holy day or the observance of any religious custom or usage, and the employer shall make reasonable accommodations to the religious needs of such person. Without in any way limiting the foregoing, no person shall be required to remain at his or her place of employment during any day or days or portion thereof that, as a requirement of such person's religion, he or she regularly and customarily observes as a Sabbath or other holy day, including a reasonable time prior and subsequent thereto for travel between his or her place of employment and his or her home, provided, however, that any such absence from work shall, when requested by the employer and whenever practicable in the judgment of the employer, be made up by an equivalent amount of time at some other mutually convenient time. The provisions of this subparagraph shall not be construed to apply to any position dealing with health or safety where the person holding such position must be available for duty whenever needed. The provisions of this subparagraph shall not be construed to apply to any position or class of positions the nature and quality of the duties of which are such that the personal presence of the holder of such position is regularly essential on any particular day or days or portion thereof for the normal performance of such duties with respect to any applicant therefor or holder thereof who, as a requirement of his religion, regularly or customarily observes such day or days or portion thereof as his or her Sabbath or other holy day. The provisions of this subparagraph shall not apply where the uniform application of terms and conditions of attendance to employees is essential to prevent undue economic hardship to the employer.

6.

For any employer, labor organization or employment agency, or an employee or agent of an employer, labor organization or employment agency, to discharge, expel or otherwise discriminate against any person because he or she has: (i) opposed any practices forbidden under this chapter; or (ii) filed a complaint, testified or assisted in any proceeding under this chapter; or (iii) commenced a civil action against such employer, labor organization or employment agency, or employee or agent thereof, which action alleges the commission of an unlawful discriminatory practice; or (iv) participated with the commission or its members or counsel in any investigation; or (v) provided information to the commission or its members or counsel in any investigation.

7.

For an employer to compel an employee who is pregnant to take a leave of absence, unless the employee is prevented by such pregnancy from performing the activities involved in the job or occupation in a reasonable manner or unless the employer made or offered to make reasonable accommodations to the employee, which accommodations were declined by the employee.

8.

For an employer, licensing agency, employment agency or labor organization to refuse to provide reasonable accommodations to the known disabilities of an employee, prospective employee or member or to a victim of domestic violence, sexual abuse or stalking in connection with a job or occupation sought or held or participation in a training program. Nothing contained in this subdivision shall be construed to require provision of accommodations which can be demonstrated to impose an undue hardship on the operation of an employer's, licensing agencies, employment agency's or labor organization's business, program or enterprise. In making such a demonstration with regard to undue hardship the factors to be considered include: (i) the overall size of the business, program or enterprise with respect to the number of employees, number and type of facilities, and size of budget; (ii) the type of operation which the business, program or enterprise is engaged in, including the composition and structure of the workforce; and (iii) the nature and cost of the accommodation needed.

9.

For an employer, labor organization, employment agency or licensing agency, or employee or agent to:

(i)

Rely on the wage history of a prospective employee from any current or former employer of the individual in determining the wages for such individual; provided that an employer may rely on prior wage history when it is voluntarily provided by a prospective employee to support a wage higher than the wage offered by the employer;

(ii)

Orally, or in writing, request or require as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment, or as a condition of employment, that a prospective employee disclose information about the employee's own wages from any current or former employer; and

(iii)

Orally, or in writing, seek from any current or former employer the previous wages of any prospective employee; provided, however, that an employer may seek to confirm prior wage information only after an offer of employment with compensation has been made to the prospective employee and the prospective employee responds to the offer by providing prior wage information to support a wage higher than offered by the employer. Under these circumstances, the employer may only seek to confirm prior wages after obtaining written authorization by the prospective employee to do so.

The employer shall not refuse to hire or otherwise retaliate against an employee or prospective employee based upon prior wage or salary history or because the employee or prospective employee has opposed any act or practice made unlawful by this subdivision.

This section shall be null and void on the day that Statewide legislation goes into effect, incorporating either the same or substantially similar provisions as are contained in this law, or in the event that a pertinent State or federal administrative agency issues and promulgates regulations preempting such action by the County of Westchester. The County Legislature may determine via mere resolution whether or not identical or substantially similar statewide legislation, or pertinent preempting State or federal regulations have been enacted for the purposes of triggering the provisions of this section.

10.

(a)

Unless specifically required or permitted by any other law, an employer shall not:

(1)

Make a preliminary or initial inquiry or statement related to a criminal conviction or arrest record of any person in an application for employment. For purposes of this paragraph, "any inquiry" means any question communicated to an applicant in writing or otherwise. For purposes of this paragraph, "any statement" means a statement communicated in writing or otherwise to the applicant for purposes of obtaining an applicant's criminal background information regarding: (i) an arrest record; or (ii) a conviction record; or

(2)

Declare, print or circulate or cause to be declared, printed or circulated any solicitation, advertisement or publication which expresses, directly or indirectly any limitation, or specification in employment based on a person's arrest record or criminal conviction.

(b)

After submission of an application for employment, an employer may inquire about the applicant's arrest or conviction record in accordance with New York State Executive Law section 296(16).

(c)

Before taking any adverse employment action based on such inquiry, the employer shall perform an analysis of the applicant's criminal record and other factors under Article 23-A of the New York State Correction Law as required, and the analysis may be requested by the applicant, and if requested, the employer must provide a written statement setting forth the reasons for such denial, pursuant to New York State Correction Law Article 23-A, Section 754.

(d)

An applicant shall not be required to respond to any inquiry or statement that violates subparagraph (a) of this paragraph and any refusal to respond to such inquiry or statement shall not disqualify an applicant from the prospective employment.

(e)

Nothing in this paragraph 10. shall prevent an employer from taking adverse action against any employee or denying employment to any applicant for reasons other than such employee's or applicant's arrest or criminal conviction record.

(f)

This paragraph shall not apply to any actions taken by an employer pursuant to any state, federal or county law that requires criminal background checks for employment purposes or bars employment based on criminal history.

(g)

This paragraph shall not apply to any actions taken by an employer with regard to an applicant for employment as a police officer or peace officer, as those terms are defined in subdivisions "33" and "34" of Section 1.20 of the Criminal Procedure Law, respectively, or at a law enforcement agency as that term is used in Article 23-A of the New York State Correction Law.

(h)

This paragraph shall be enforced pursuant to section 700.11 of this chapter and through the commission's rules and procedures.

b.

The provisions of this section:

1.

As applicable to employee benefit plans, shall not be construed to preclude an employer from observing the provisions of any plan covered by the Federal Employment Retirement Income Security Act of 1974 that is in compliance with federal discrimination laws where the application of the provisions of such subdivisions to such plan would be preempted by such act;

2.

Shall not preclude the varying of insurance coverage according to an employee's age;

3.

Shall not be construed to effect any retirement policy or system that is permitted pursuant to paragraphs (e) and (f) of subdivision three-a of Section 296 of the Executive Law;

4.

Shall not be construed to affect the retirement policy or system of an employer where such policy or system is not a subterfuge to evade the purpose of this chapter; and

5.

Shall not preclude any employer from making any lawful inquiry as to the alienage or citizenship status of any employee or prospective employee and shall not preclude any employer from refusing to hire or employ, or barring or discharging from employment, any person not lawfully eligible for such employment.

6.

Shall protect a victim of domestic violence, sexual abuse or stalking against employment discrimination if said individual chooses to provide the employer documentation certifying his or her status as a victim of domestic violence, sexual abuse or stalking. Certification establishing such status shall be sufficient in the form of any of the following:

(a)

A police report indicating that the employee was a victim of domestic violence, sexual abuse or stalking;

(b)

A court order protecting the employee from the perpetrator of an act of domestic violence, sexual abuse or stalking or other evidence from the court or prosecuting attorney that the employee has appeared in court; or

(c)

Documentation from a medical professional, domestic violence advocate, health care provider, a member of the clergy or counselor that the employee was undergoing treatment for, or seeking assistance to address, physical or mental injuries or abuse resulting from domestic violence, sexual abuse or stalking. This certification is only required to assist victims, where appropriate, who choose to invoke the protections and benefits of the Westchester County Human Rights Law as well as to assist employers in their assessment of the situation and, if necessary, to enable them to provide reasonable accommodations. The employer shall retain all such information received from a victim of domestic violence, sexual abuse or stalking in the strictest confidence, except to the extent that such disclosure (1) is necessary to provide for a reasonable accommodation; or (2) otherwise required pursuant to applicable federal, state or local law.

7.

Shall not apply to an employer or an employee or an agent thereof (1) that has been informed of the employee's status as a victim of domestic violence, sexual abuse or stalking; and (2) where such employer provides a reasonable accommodation to enable a victim of domestic violence, sexual abuse or stalking to perform the functions of his or her employment.

8.

Shall not apply to an employer or an employee or an agent thereof where no adverse employment action has been taken against the individual as a result of the person's status as a victim of domestic violence, sexual abuse or stalking.

9.

Shall not apply to an employer or an employee or an agent thereof if the victim of domestic violence, sexual abuse or stalking failed to provide the employer or an employee or an agent thereof with documentation certifying that he or she is a victim of domestic violence, sexual abuse or stalking, except that it shall apply if an employer or an employee or an agent thereof perceives an individual to be a victim of domestic violence, sexual abuse or stalking.

(Added by L.L. No. 17-1999; amended by L.L. No. 14-2005; L.L. No. 1-2018 , § 1, 4-10-2018; L.L. No. 14-2018 , § 1)