New York Continues Expansion of Protections Against Discrimination and Harassment

On August 12, 2019, Governor Andrew Cuomo signed legislation (S.6577/A.8421) that greatly expanded the protections for workplace discrimination and harassment.  These additional protections come just a little over one year after the state enacted comprehensive legislation designed to combat sexual harassment.

Expands coverage to all employers.  The New York Human Rights Law will cover all New York employers, regardless of the number of employees.  Previously, except for sexual harassment claims, employers with fewer than four employees were not covered. Effective Date: February 8, 2020.

Lowers the standard for sexual harassment claims.  Currently, a plaintiff alleging harassment must establish that harassing conduct is “severe or pervasive.” The new legislation rejects the “severe or pervasive” standard.  Under the new standard, conduct that rises above what a reasonable person would consider “petty slights or trivial inconveniences” may be actionable. Effective Date: October 11, 2019.

Limits an employer’s defense.  An employer may have a defense to certain sexual harassment claims if the employer can establish it “exercised reasonable care” to prevent and correct sexual harassment and that the victim of the alleged harassment “unreasonably failed to take advantage of any preventative or corrective opportunities” provided by the employer.  This is commonly known as the Faragher/Ellerth defense, named after the U.S. Supreme Court cases that established the defense.  However, the new amendments effectively eliminate the defense for state law claims and an employer may be liable even if the alleged victim did not report the purported conduct. Effective Date: October 11, 2019.

Changes to Non-Disclosure Clauses.  Non-disclosure provisions in employment contracts that prevent “the disclosure of factual information related to any future claim of discrimination” must include language stating that employees may file a complaint of harassment or discrimination with a state or local agency, and testify or participate in a government investigation. Effective date: January 1, 2020.  Furthermore, a non-disclosure requirement in a settlement or release agreement related to any claims of discrimination or harassment must be the alleged victim’s preference and must meet certain procedural requirements.  This provision previously applied only to claims involving sexual harassment. Effective Date:  October 11, 2019.

Expands protections to domestic workers and non-employees.  New York now provides protections against all forms of workplace discrimination to all non-employees (contractors, subcontractors, vendors, consultants, or others providing services in the workplace).  In addition, domestic workers (individuals employed in a home or residence for the purpose of caring for a child, serving as a companion for a sick, convalescing or elderly person, housekeeping, or for any other domestic service purpose) are now protected from all forms of discriminatory harassment. Effective Date: October 11, 2019.

Statute of limitations for sexual harassment claims increases.  The statute of limitations for sexual harassment claims filed with the New York State Division of Human Rights increases from one to three years. Effective date: August 12, 2020.

Punitive damages and attorneys’ fees.  Private employers may now be liable for punitive damages in discrimination cases.  In addition, a prevailing party may be awarded attorneys’ fees; provided that prevailing defendants show that the underlying complaint was frivolous. Effective Date: October 11, 2019.

Policy and training requirements.  Employers must provide their employees notice about the employer’s sexual harassment prevention policy in English as well as the employee’s primary language.  Notice of the  policy must be provided “at the time of hiring and at every annual sexual harassment prevention training.” Notice of the employer’s training materials must also be provided at every sexual harassment prevention training. Effective Date:  Immediately.

Arbitration prohibited.  As part of the 2018 amendments to address workplace sexual harassment, arbitration of sexual harassment claims was prohibited.  The new laws extend this prohibition to all discrimination and harassment claims.  However, the Southern District Court of New York recently ruled that the prohibition against arbitration of sexual harassment claims was preempted by the Federal Arbitration Act and compelled arbitration of the underlying claims.  Therefore, it is likely that the new requirement will be similarly unenforceable.  Effective Date:  October 11, 2019.

Liberal construction.  New York’s discrimination and harassment laws are to be construed liberally in order to “maximize deterrence of discriminatory conduct.” Effective Date: Immediately.

Employers should review their policies, practices, training programs, and employment agreements (especially non-disclosure, settlement, and severance agreements) to ensure compliance with the new requirements.  And, don’t forget sexual harassment prevention training for all employees must be completed annually. Please contact one of the firm’s Labor and Employment Law attorneys for guidance on these new changes or any other labor and employment law matters.

view New York Continues Expansion of Protections Against Discrimination and Harassment as a PDF

Attorney Advertising. Prior results do not guarantee a similar outcome. This publication is provided as a service to clients and friends of Harter Secrest & Emery LLP. It is intended for general information purposes only and should not be considered as legal advice. The contents are neither an exhaustive discussion nor do they purport to cover all developments in the area. The reader should consult with legal counsel to determine how applicable laws relate to specific situations. ©2019 Harter Secrest & Emery LLP