August 30, 2019 Amendments to the New York State Human Rights Law and Other Laws Prohibiting Harassment and Employment Discrimination (Updated)
KEEPING YOU INFORMED…
As New York State’s October 9, 2019 deadline to train all employees on workplace sexual harassment prevention approaches, we are writing to inform you of yet another set of major changes to the New York State anti-harassment and discrimination legal landscape. Key components of this legislation are summarized below.
Expansion of the Law’s Coverage to All Employers
Effective February 8, 2020, every New York State employer, regardless of size, will be required to abide by the New York State Human Rights Law (“NYSHRL”). Currently, with the exception of sexual harassment, only employers with four or more employees are required to abide by the NYSHRL.
Changes to Employer Policy and Training Requirements
Effective August 12, 2019, employers must provide to all employees, at the time of hire and at every annual sexual harassment prevention training, a “notice containing [the] employer’s sexual harassment prevention policy and the information presented at [the] employer’s sexual harassment prevention training program.” This information must be provided in English and in the employee’s primary language as identified by the employee (with the exception of languages in which the State’s sexual harassment prevention policy/training program templates are not available). Employers that provided the mandatory workplace sexual harassment prevention training to their existing employees prior to August 12, 2019 need not provide the “notice” until those employees receive their next annual workplace sexual harassment prevention training. If you require assistance with preparing the notice or complying with this new change to the law, please contact us.
Expansion of Prohibited Harassment
Effective October 11, 2019, it will be an unlawful discriminatory practice to subject an individual to harassment on the basis of any category/characteristic that is protected by the NYSHRL (e.g., age, race, national origin, disability; etc.) or on the basis of an individual’s filing, testifying or assisting in a harassment investigation or proceeding. This amendment applies to employees, domestic workers and non-employees (i.e., contractors, subcontractors, vendors, consultants or others providing services in the workplace pursuant to a contract, or their employees).
Elimination of the “Severe and Pervasive” Standard for Hostile Work Environment Claims
The existing requirement, based on decades of case law precedent, that sexual harassment be “severe and pervasive” in order for it to be actionable/unlawful, will no longer apply. Instead, effective for claims based on conduct occurring on or after October 11, 2019, the new legal standard will be that harassment by an employer, licensing agency, employment agency or labor organization is unlawful if it “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of [the] protected categories.” There is currently no guidance about what, specifically, constitutes “inferior terms, conditions or privileges of employment.”
This standard will also apply to any form of prohibited harassment where “the individual has opposed any practices forbidden [by the NYSHRL] or because the individual has filed a complaint, testified or assisted in any proceeding [pursuant to the NYSHRL]” (i.e., retaliation for filing, testifying or assisting in a harassment proceeding or investigation).
Changes to Employer Defenses to Harassment/Discrimination Claims
Effective for claims based on conduct occurring on or after October 11, 2019, employers may no longer utilize the “Faragher-Ellerth defense,” which had provided a potential defense to sexual harassment claims in situations where the employee failed to use the employer’s reporting policy/procedure. Because we have, for years, advised our clients to investigate any allegation of harassment, discrimination or retaliation, regardless of the means by which they learned of it, this change to the law should not result in a change to your practices for investigating complaints.
In addition, the so-called “comparator defense” for employers has been eliminated. This means that the complaining/affected individual is no longer required to demonstrate that the employer more favorably treated a comparable employee who was not a member of the same protected class.
Employers will be able to raise, as a new affirmative defense, that the “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.” What this actually means, and how to prove it, will need to be determined by the courts.
Reasonable Attorneys’ Fees for All Employment Discrimination Claims
Effective for claims based on conduct occurring on or after October 11, 2019, “reasonable” attorneys’ fees may be awarded to the prevailing party in any employment discrimination claim. If, however, the prevailing party is the employer, the employer must be able to show that the claim is “frivolous” in order to be awarded reasonable attorneys’ fees. A claim will be deemed “frivolous” if: “(a) the action or proceeding was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or (b) the action or proceeding was commenced or continued in bad faith without any reasonable basis and could not be supported by a good faith argument for an extension, modification or reversal of existing law.”
Changes to Employment Agreements and Settlement Agreements
Effective October 11, 2019, the State’s requirements for non-disclosure agreements and its prohibition on mandatory arbitration clauses (as described in our May 7, 2018 client memorandum) will be expanded to apply to all claims of unlawful harassment, discrimination or retaliation.
In addition, any non-disclosure agreement must be provided to all parties required to abide by it in writing, in plain English as well as in the primary language of the complainant (if not English). A non-disclosure agreement will be deemed void if it prohibits or restricts the complainant from “initiating, testifying, assisting, complying [sic] with a subpoena from, or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency” or filing or disclosing any facts necessary to receive public benefits to which the complainant is entitled including, but not limited to, unemployment insurance and Medicaid.
Effective January 1, 2020, any employment agreement entered into between an employer or an employer’s agent and an employee or potential employee containing a provision preventing disclosure of any factual information related to any future potential discrimination claim(s) will be void and unenforceable unless the provision also contains language notifying the employee/potential employee of his/her right to, notwithstanding this provision, speak with law enforcement, the Equal Employment Opportunity Commission, the NYS Division of Human Rights, a local Human Rights Commission, or an attorney retained by the employee/potential employee.
Changes Affecting Employment Discrimination Claims Against Private Employers
Effective for claims based on conduct occurring on or after October 11, 2019, the NYS Division of Human Rights Commissioner may award uncapped punitive damages to the prevailing employee(s), in addition to the current potential remedies of front pay, back pay, compensatory damages; etc. in an action filed against a private employer. “Private employer” will be defined to include a person, company, corporation, labor organization or association. The term will not include the State, a local subdivision of the State or any State or local department, agency, board or commission.
Extension of Time to File Sexual Harassment Claims
Effective for claims based on conduct occurring on or after August 12, 2020, the amount of time an employee will have to file certain sexual harassment claims with the NYS Division of Human Rights will be extended from one year to three years.
As you can see, there are many changes to various laws as a result of this new legislation. These changes will likely necessitate updating your anti-harassment policies (and related trainings and materials), employee handbooks, prospective employment agreements and other related documents. If you have any questions regarding this legislation, please contact Alyssa Zuckerman or any of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
 The amended law also codifies the NYS Division of Human Rights Commissioner’s required preparation of the model sexual harassment prevention policy and training program, as well as the Commissioner’s discretion to determine in which languages to provide these materials.
 There are certain situations where the “severe and pervasive” standard does not currently need to be met in order for the harassment to be unlawful (e.g., “quid pro quo” sexual harassment, such as, for example, a supervisor offering a promotion to a subordinate only if the subordinate sleeps with him/her).
 Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
 Earlier this summer, the federal U.S. District Court for the Southern District of New York concluded that New York’s prohibition on mandatory arbitration of sexual harassment claims is invalid because it is inconsistent with the Federal Arbitration Act. If the revised law is also challenged, the prohibition on mandatory arbitration clauses in any other unlawful harassment, discrimination or retaliation claim may also be deemed to be invalid.
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© Lamb & Barnosky, LLP 2019