At the close of its 2019 session, the New York General Assembly passed substantial changes to the state’s anti-harassment and discrimination laws, which Governor Andrew Cuomo has indicated that he will sign into law. The new law applies to all protected classes under NY law.
The changes to the New York anti-harassment and discrimination laws are as follows:
- Employers of all sizes will now be covered by the law. The new law will expand the definition of employer to include all employers within the state of New York, including the state and political subdivisions. Previously, the definition of employer included only employers with four or more employees.
- Non-employees and domestic workers will now be covered. The new law will expand its protections to domestic workers and non-employees including contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace or an individual who is an employee of such non-employers.
- Employees will no longer be required to prove that the harassment or discrimination was severe or pervasive. Under the new law, harassment, discrimination, and retaliation based on a protected characteristic will be unlawful “regardless of whether the conduct was severe or pervasive.” This new standard is a departure from the long-held burden of proof for these claims. The new law, however, will provide an affirmative defense if an employer can show that a reasonable person with the same protected characteristics would consider the conduct petty slights or trivial inconveniences. Without further guidance or court decisions, this affirmative defense may prove difficult to establish.
- The Faragher/Ellerth Defense will no longer be available. Recall that employers may invoke an affirmative defense under Title VII, called the Faragher/Ellerth defense, if there was no adverse action taken against the complainant, the employer exercised reasonable care to prevent and correct promptly the harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer (e.g., the employer’s internal complaint procedure.) The new law will remove this affirmative defense under NY state law.
- Employees will no longer be required to prove that they were treated different than another individual outside the same protected class.
- Punitive Damages will now be available as a remedy.
- Attorney’s Fees. The new law will allow a court or the New York Division of Human Rights (“NYDHR”) to award reasonable attorney’s fees to any prevailing or substantially prevailing party. Employers seeking attorney’s fees must show that the Plaintiff’s claim was frivolous, meaning that the complaint was filed in bad faith and without reasonable basis.
- Statutory Construction. Under the new law, the state law is to be construed liberally regardless of whether the federal civil rights laws are worded similarly. Further, exceptions to the law are to be construed narrowly in order to “maximize deterrence of discriminatory conduct.”
- Non-disclosure Agreements (“NDAs”) will be prohibited in most circumstances for all harassment and discrimination claims. Last year, New York generally prohibited NDAs in settlements of sexual harassment claims unless the employee preferred such an agreement. The new law will extend this prohibition to NDAs for harassment and discrimination claims based on any protected class unless the employee prefers the agreement. Employers must give the Complainant the nondisclosure agreement in writing and in plain English or, if applicable, the primary language of the Complainant. Further, like the Older Workers’ Benefit Protection Act, employees must be given 21 days to review the NDA and 7 days to revoke the NDA after signing it.
- Exception for NDAs. Effective January 1, 2010, NDAs in any employment contract or other agreement between an employer and employee that prevents the disclosure of factual information related to any future claim of discrimination will be void and unenforceable unless the provision notifies the employee or prospective employee that it does not prohibit him or her from speaking with law enforcement, the EEOC, the NYDHR, a local commission on human rights, or an attorney retained by the employee or potential employee.
- Mandatory arbitration will be prohibited. Last year, New York also prohibited mandatory arbitration of sexual harassment claims. The new law will extend this prohibition to all claims of harassment and discrimination.
- Sexual harassment policy distribution requirements. The new law will require that employers provide to their employees a copy of their sexual harassment policy at the time of hire and at the time of the employee’s annual sexual harassment prevention training. Employers will be required to provide this information in English or in the language identified by the employee as his or her primary language. New York will create model sexual harassment policies and model training programs in English and other languages (in its discretion.) If New York does not create templates in the language required by the employee, an employer may satisfy this requirement by presenting the policy in English. Further, an employer will not be penalized for errors or omissions in the non-English templates provided by NY.
- Statute of limitations. Employees will now have three years to bring claims of sexual harassment in the employment context.
These changes will significantly impact an employer’s obligations with regard to harassment and discrimination in the workplace and will change the way employment cases are litigated. We will continue to update you as the new law develops.