Employment Law Alert: Expansion of the New York State Human Rights Law’s Discrimination and Harassment Protections
August 21, 2019
On August 12, 2019, Governor Cuomo signed new legislation that changes the New York State Human Rights Law (“NYSHRL”) by significantly amending its anti-discrimination and anti-harassment provisions.
The NYSHRL is amended as follows:
- Sexual Harassment Policy and Training Materials (effective immediately): Requires employers to give a notice to employees upon hire and at every annual sexual harassment training that contains (1) a copy of the employer’s sexual harassment policy and (2) a copy of any information presented at the annual harassment prevention training.
- Coverage of Non-Employees (effective October 11, 2019): Expands protections for non-employees (i.e., contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace or a person who is an employee of such non-employee) to all discriminatory practices, not just sexual harassment, “when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to an unlawful discriminatory practice and the employer failed to take immediate and appropriate corrective action.”
- Harassment Standard (effective October 11, 2019): Removes the “severe and pervasive” standard for harassment and establishes a new standard such that harassment based on a protected characteristic is an unlawful discriminatory practice when it “subjects an individual to inferior terms, conditions or privileges of employment” because of the individual’s membership in such protected class.
- Employer Defenses (effective October 11, 2019):
- The amendment eliminates a longstanding employer defense for claims brought under the NYSHRL known as the Faragher-Ellerth defense, whereby an employer could defeat a discrimination or harassment claim if the employee failed to utilize reporting mechanisms in an employer’s anti-discrimination and anti-harassment policies. Under the new legislation, as with the New York City Human Rights Law, having robust complaint procedures in place that are not used by an employee no longer insulates employers from discrimination and harassment claims.
- The amendment codifies a new affirmative defense for employers provided they can establish that the allegedly harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider “petty slights or trivial inconveniences.”
- Punitive Damages and Attorneys’ Fees (effective October 11, 2019): Makes uncapped punitive damages available in all cases of employment discrimination brought under the NYSHRL, and allows for attorneys’ fees for all forms of employment discrimination to the prevailing party (although if an employer defendant prevails, it must show that the claim was frivolous).
- Confidentiality/Non-disclosure Clauses (effective October 11, 2019): Prohibits non-disclosure agreements in settlement agreements for all forms of discrimination or harassment.
- Any such agreement must be given in plain English or in the primary language of the complainant.
- The agreement must provide the employee twenty-one (21) days to consider the terms of the agreement, which cannot be waived.
- The agreement must also provide the employee seven (7) days to revoke the agreement, which cannot be waived.
- The agreement cannot prevent an employee who settles from initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with, an investigation by a government agency; or from filing or disclosing facts necessary to receive unemployment insurance, Medicaid or other public benefit to which the complainant is entitled.
- For agreements entered into on or after January 1, 2020, the agreement cannot prevent the disclosure of factual information related to any future claim of discrimination (such agreement shall be void), unless it provides that the employee may speak to law enforcement, the EEOC, the New York State Division of Human Rights (“NYSDHR”), a local commission, or an attorney.
- Arbitration (effective October 11, 2019): Prohibits mandatory arbitration for all discrimination claims, although this aspect of the bill could be preempted by federal law.
- Applicability to All Employers (effective February 8, 2020): Expands the definition of a covered employer to include all private employers within the state, regardless of size, thus eliminating the four (4) employee threshold.
- Statute of Limitations (effective August 12, 2020): Extends the statute of limitations for sexual harassment claims made to the NYSDHR to three (3) years after the alleged harassing conduct. The statute of limitations for all other forms of discrimination remains at one (1) year when filed with the NYSDHR. The legislation does not affect the three (3) year statute of limitations to file discrimination and harassment claims in court.
To seek advice regarding the new laws, internal investigations and reports of discrimination or harassment or to schedule a sexual harassment and employment law training session please contact Anne C. Patin at (212) 574-1516 or Julia C. Spivack at (212) 574-1373.