This article originally appeared in Goldberg Segalla’s Professional Liability Matters. Read the issue here.
On June 19, 2019, the New York State legislature voted to pass bills A08421 and S06577, new laws that expand the legal standard for workplace discrimination and harassment claims in New York. Subsequently, on August 12, 2019, Gov. Andrew Cuomo, signed the legislation into law.
The new law will arguably make it easier for employees to plead and prove discrimination and harassment claims.
Below are some questions and answers to help navigate this new law.
Q: When does this legislation go into place?
A: The new law will be effective October 11, 2019.
Q: How has the standard changed?
A: Essentially, the new law provides a much lower burden of proof for employees that have been a victim of discrimination and harassment in the workplace. Prior to this new legislation, the standard for discrimination and harassment was that the behavior had to be “severe and pervasive,” which is consistent with federal law. The new language is now consistent with New York City law. The law states that it will be unlawful “to subject an individual … to inferior terms, conditions or privileges of employment because of an individual’s membership in one or more of these protected categories … regardless of whether such harassment would be considered sever and pervasive under the precedent applied to harassment claims.”
Moreover, the new law now allows protection for domestic workers and non-employees against discrimination and harassment. And it eliminates a common defense employers use in discrimination and harassment claims—that the complainant did not previously bring an internal complaint of the harassment or discrimination. This is known as the Faragher/Ellerth defense. Employees now are not required to report internally before bringing a claim. Instead, an affirmative defense to liability can be used by demonstrating that the harassing conduct does not rise above the level of what “a reasonable victim with the same protected characteristic” would consider “petty slights or trivial inconveniencies.”
The new law also will expand the 2018 prohibition of non-disclosure agreements (NDA) in sexual-harassment claims to all discrimination and harassment claims, unless it is the complainant’s preference to enter into an NDA. A carve-out must also be included in all NDAs stating that the employee is not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee.”
The new law also expands the 2018 prohibition against mandatory arbitration clauses in sexual harassment settlement so that it also applies to all discrimination claims. And it authorizes the attorney general to prosecute certain civil and criminal cases of discrimination against all protected classes.
Q: To whom does the new law apply?
A: The New York State Human Rights Law (NYSHRL) now applies to all private employers in New York. Previously, except in matters involving sexual harassment, the NYSHRL was only applicable to employees with four or more employees.
Q: What potential damages do employers now face?
A: Previously, compensatory damages and reasonable attorney fees were recoverable under NYSHRL. Now, the new legislation allows courts to award punitive damages in all cases involving private employers and requires courts to award reasonable attorney’s fees to the prevailing party.
Q: What is the statute of limitations for these claims?
A: The legislation extends the statute of limitations in sexual harassment claims from one year to three years from the date of the alleged discriminatory practice. All other claims arising from discrimination must be brought within one year from the last alleged discriminatory act.
Q: What should employers do to protect themselves?
A: Employers should educate management and their human resources department to be knowledgeable of the new changes in the law. They should also make sure that all training on discrimination and harassment are updated to reflect the new changes in law. Employers should also review all of their current agreements with employees, including separation agreements, employment agreements and settlement agreements, to ensure they are consistent with best practices.
Professional Liability Magazine, a collaborative effort of Goldberg Segalla’s Management and Professional Liability Practice Group, examines the latest best practices, emerging developments, and influential court decisions impacting the defense of professional service providers. Read our latest issue here.