Déjà Vu All Over Again: New York State Enacts Sweeping Changes to Combat Harassment and Discrimination in the Workplace

June 2019

Following on the heels of last year’s reforms to New York’s sexual harassment laws, late last week the New York State legislature passed a number of measures that are poised to significantly overhaul New York’s anti-harassment and anti-discrimination laws. While Governor Cuomo has not yet signed this legislation, he is expected to enact it shortly. The below is a snapshot of the most important takeaways for all employers with employees in New York.

Employers of all Sizes Are Now Covered

Previously, the New York State Human Rights Law (“NYSHRL”) applied only to employers with four or more employees in New York (except with respect to sexual harassment claims). Now, the NYSHRL will extend its protections to employers of all sizes. This provision will be effective as of 180 days from enactment.

Lower Standard of Proof for Harassment and Discrimination Claims

The new legislation lowers the burden of proof for claims of discrimination, harassment, and retaliation in three key ways, each of which are effective as of 60 days from enactment.

First, complainants no longer need to allege that harassment on the basis of any protected characteristic is “severe and pervasive” and instead need only show that such harassment rises above the level of “petty slights and trivial inconveniences.”

Second, employers may no longer rely upon the so-called Faragher/Ellerth defense to defend against claims of harassment. Under the Faragher/Ellerth defense, employers could avoid liability by demonstrating that the employee failed to utilize the employer’s internal complaint procedure, which would have ameliorated the alleged harassment. Under the new legislation, such a defense is no longer available for claims of harassment under the NYSHRL.

Third, employees claiming discrimination are no longer required to show that their treatment differed from, or that they were treated less favorably than a comparator (i.e., a similarly situated employee that does not share the complainant’s protected characteristic).

Independent Contractors may not be Subject to Harassment of Any Kind

Previously, non-employees in the workplace, including independent contractors, were only protected from sexual harassment in the workplace. Under the new legislation, those protections have been expanded, with the NYSHRL being amended to provide that non-employees in the workplace, may not be subject to unlawful discriminatory practices. This change is effective as of 60 days from enactment.

Attorney’s Fees Awards are no Longer Discretionary

Under the old framework, attorney’s fee awards to the prevailing party were discretionary. Not so anymore. Now, such awards are mandatory (however, the legislature did not change the rule that prevailing employers are only entitled to attorney’s fees where it can demonstrate that the employee’s claim was frivolous). This change is effective immediately upon enactment.

Punitive Damages Now Available

Previously unavailable, the new legislation enables complainant’s to now seek punitive damages for claims of discrimination, harassment or retaliation under the NYSHRL. This change is effective as of 60 days from enactment.

Confidentiality Provisions Prohibited for all Discrimination Complaints

Last year, New York took steps to sharply limit the use of confidentiality provisions in cases of sexual harassment settlements by mandating that such provisions could only be included in agreements where it was the complainant’s preference to include such a provision. This year, the legislature has expanded this limitation on confidentiality provisions to all types of harassment, discrimination or retaliation. This change is effective as of 60 days after enactment.

Mandatory Arbitration Provisions Prohibited

In last year’s reforms, the legislature banned mandatory arbitration of claims of sexual harassment. Now, that ban has been extended to all claims of discrimination or retaliation, not just sexual harassment. This change is effective as of 60 days after enactment.

Limitations on Employee Non-Disclosure Agreements

Starting on January 1, 2020, employment agreements that include confidentiality provisions must include a carveout permitting the employee to speak with “law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”

Employers Must Distribute Anti-Sexual Harassment Policy

Under the new laws, employers must now provide New York-based employees, at the time of hire and during the annual sexual harassment training, with a notice containing the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.” Such information must be provided both in English and in the employee’s primary language (as identified by the employee). The state will likewise begin providing model policies in languages other than English. Employers are not required to provide their policy in languages other than English, however, if such a template has not been published. This change is effective immediately upon enactment.

Statute of Limitations for Sexual Harassment Claims Extended to Three Years

Employees will now have three years to file a claim of sexual harassment with the NYSHRL (previously, employees had one year to file with the agency, and three years to file a complaint in court). This change goes into effect one year after enactment.

Next Steps

The foregoing changes will impact how employers will handle all claims of harassment, discrimination and retaliation, not just sexual harassment. As these constitute significant changes to the law, it is recommended that all employers with New York-based employees review their policies, and consult with their employment counsel.

For more information on this issue or other employment matters, please contact:

Carol Goodman at [email protected] or +1 212 592 1465

© 2019 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.