On August 12, 2019, Governor Andrew Cuomo signed a set of wide-sweeping bills which amend many aspects of New York’s anti-discrimination laws, including making monumental changes to the long-standing legal standards for bringing workplace harassment claims.
The following is a summary of the bills’ key provisions and the relevant effective dates of the law:
Beginning on October 11, 2019:
- Employees will no longer have to demonstrate that alleged workplace harassment was “severe and pervasive” enough to alter the conditions of employment. Instead, harassment will be unlawful in New York where “it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of [the enumerated] protected categories”.
- Employers will not be able to rely on the popular “Faragher-Ellerth” affirmative defense in litigation – a defense which was created by the U.S. Supreme Court in two 1998 decisions and which permits employers to defend harassment claims by arguing that the employee unreasonably failed to use internal reporting channels to allow the employer the opportunity to address the harassment prior to filing a lawsuit. In fact, under the new law, the fact that the employee did not complain internally is “not determinative” of employer liability.
- Employers may establish an affirmative defense in such cases only by showing that a reasonable victim of discrimination in the same protected class as the claimant would consider the alleged harassment merely “petty slights or trivial inconveniences”.
- “Non-employees,” such as contractors, vendors and consultants, will be protected from all types of discrimination (not just sexual harassment) where the business, its agents or supervisors “knew or should have known” about the unlawful discriminatory practices and failed to take immediate and appropriate corrective action.
- Successful employees will be permitted to recover attorneys’ fees and punitive damages under the New York State Human Rights Law, although the award of attorneys’ fees in such cases will be discretionary rather than mandatory.
- Employers will be prohibited from including non-disclosure provisions in settlement agreements for all claims of discrimination, expanding New York’s 2018 legislation which prohibited such clauses in settlement of sexual harassment claims. However, the same exception will apply as in the prior law: if the alleged victim explicitly requested the confidentiality clause; the clause is provided in writing in plain English (and the complainant’s primary language, if applicable); the complainant is given 21 days to consider the clause and 7 days to revoke acceptance; and the clause does not restrict participation in investigations by federal, state or local equal employment opportunity agencies or disclosure necessary to receive public benefits (such as unemployment insurance or Medicaid).
- Employers will be prohibited from requiring arbitration of all claims of discrimination, also expanding the State’s 2018 legislation invalidating arbitration of sexual harassment claims. However, the enforceability of such a ban under the Federal Arbitration Act remains an open question, and at least one federal district court in New York has already found in favor of arbitration, despite the New York law. See Latif v. Morgan Stanley & Co., LLC, 2019 WL 2610985 (S.D.N.Y. June 26, 2019).
Beginning on February 8, 2020:
- The New York State Human Rights Law will apply to all employers in New York (other than the State). Under current law, it only applies to employers with a minimum of four employees.
Beginning on August 12, 2020:
- The statute of limitations to file sexual harassment complaints with the New York State Division of Human Rights will be increased from one year to three years (the same amount of time allowed to bring such a claim in court).
Beginning on January 1, 2020:
- Contracts entered on or after January 1, 2020 may not include clauses that prevent disclosure of factual information related to any future claim of discrimination unless the employee or potential employee is notified that the clause does not prohibit her from speaking with law enforcement, federal, state or local equal employment opportunity agencies or her attorney.
Other important changes:
- In addition, the new legislation further amends last year’s mandatory anti-harassment policy and training requirements to add requirements. Effective immediately, employers must now, at each mandatory annual training session, provide the company’s anti-harassment policy (in English and the employee’s primary language) and “the information presented” at its harassment prevention training.
- Finally, the new law requires the state Department of Labor and Division of Human Rights to evaluate and update last year’s model sexual harassment policy and training in 2022 and every four years thereafter, and to conduct a study about how to further combat unlawful harassment and discrimination in the workplace.
Given these far-reaching developments, please reach out to the NFC attorney with whom you work to learn more about the steps your organization should take to prevent claims of discrimination and harassment, including ensuring that your policies, procedures and trainings are legally compliant or