June 2019
Discrimination / Harassment Law in New York State Has Been Forever Changed

On the last day of New York's legislative session, the New York State legislature expanded New York State's discrimination law well beyond the boundaries of where it has stood. Ironically, it will also require changes in the model policy and sexual harassment training it required less than one year ago. Here is what  ALL New York State employers must be aware of:

Previously, the State law covered only employers with 4 or more employees, except in the case of sexual harassment, as revised just last year. Now, the State's anti-discrimination provisions apply to all New York State employers, regardless of size, in all cases of discrimination or harassment based on a protected class. These classes include, sex, creed, color, national origin, religion, marital status, veteran status, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, or domestic violence victim status.

Reminder for employers in New York City:
New York City now also protects against discrimination on the basis of hair. The New York City Human Rights law now protects employees in New York City to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities. According to guidance issued by the City Commission on Human Right, this includes the right to maintain natural hair, treated or untreated hairstyles, locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state. Where an employer has a legitimate health or safety concern, it must consider alternative ways to meet that concern prior to imposing a ban or restriction on employees' hairstyles, such as the use of hair ties, hair nets, head coverings and alternative safety equipment that can accommodate various hair textures and hairstyles.

For all classes of unlawful harassment, the State has rejected the federal standard to which it had adhered that harassment had to be "severe and pervasive" to be actionable. Now, the State has adopted a much lower standard for all classifications. This standard makes harassment based on a protected class unlawful "when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual's membership in one or more of these protected categories". If this were not expansive enough, the law is now also to be read broadly and exceptions narrowly to allow for the maximum deterrence of unlawful harassment/discrimination. The only path to defeating these claims now, with regard to the standard established, is the recognition by the State Legislature that conduct, which "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" is still not actionable. Essentially, the law makes any behavior arising above a "petty slight" or "trivial inconvenience" actionable.

Making it even harder to defend against these claims, the law also makes the fact that the individual did not complain about the unlawful harassment not determinative of liability, effectively removing the affirmative defense provided in the federal law, known as the Farragher/Ellerth defense and to which the State had adhered.

The law also makes it unnecessary for the alleged victim of discrimination to point to a comparator outside of the person's protected class, meaning to win a case, a complainant does not have to show he or she was treated less favorably than another employee outside the complaining employee's protected class.

The law has also further expanded the rights of contractors and those who provide services to an employer to be free from harassment or discrimination based upon any protected class and to subject the employer to liability for same. If an employer or its agents or supervisors knew or should have known of the offending conduct and failed to take immediate and appropriate corrective action, the employer will be liable to its subcontractors, vendors, consultants, etc.

Punitive damages will now be available to successful plaintiffs under New York State law.

The statute of limitations for all forms of unlawful discrimination and harassment is being expanded from one to three years.

Last year's limitations on including non-disclosure language and mandatory arbitration provisions in settlement agreements relating to sexual harassment claims is being expanded to all classes of unlawful discrimination/harassment. The revised statute is requiring additional carve out language as well, for example, filing or disclosing any facts necessary to receive unemployment insurance Medicaid or other public benefits to which a complainant is entitled.

The law also now requires employers to provide employees in writing, in English and in the language identified by each employee as the employee's primary language its sexual harassment prevention policy and must do so at the time of hiring and at every annual sexual harassment prevention training. The State will create templates of the model sexual harassment prevention policy in certain languages. If a template is not available in an employee's primary language, the notices need be given only in English. And, if that were not enough, every 4 years, the government will review the model policies and trainings to determine if they need to be changed.

The law will now make awards of attorneys' fees non-discretionary, but will make the award available to the "prevailing party" at both the New York State Division of Human Rights and in New York State Court, so employers may get attorneys' fees paid. However, the employer who wins and wants to seek attorneys' fees must still show that the action brought by the plaintiff/complainant was "frivolous", which is to say was filed or continued in bad faith. The statute includes a specific definition of bad faith, which includes an action filed or continued to harass or maliciously injure another. In addition, attorneys' fees may be awarded to a respondent in an action pending before the State Division only after a final order and after a hearing, thereby undercutting the utility at an earlier stage of the proceeding.

Exactly when these changes go into effect will depend on when the law is signed by the Governor, but some will be effective immediately and others 60 or 180 days after enactment for claims filed after that date.
What should employers do? Once again, employers need to review their sexual harassment policies, even those recently adopted, to make sure they comply with these new mandates and that they are expanded to include all classes protected under New York State law. Settlement agreements in the future will need to be scrutinized to make sure they comply with all of these new limitations. Make sure to be on track with the State's training requirements. Most importantly, make sure supervisors and managers are fully trained and aware of the State law's expansion and what it means for policing the workplace to prevent each and every kind of actionable discrimination or harassment.

Please contact Meredith Savitt if you have any questions or concerns.