Key Takeaways:

• All employers in New York State—regardless of size—are now covered by the New York Human Rights Law

• The “severe and pervasive” requirement for hostile work environment claims has been eliminated

• Victims of sexual harassment will now have three years to file a complaint with the Division of Human Rights

New York State is again poised to expand employer liability for harassment and discrimination.  The New York State Assembly and Legislature passed A08421 and S06577 on June 19, 2019, and Governor Andrew Cuomo is expected to sign them into law.

Key Provisions of A08421 and S06577

• Expansion of “employer”—The term employer now includes “all employers within the state including the state and all political subdivisions thereof.” The prior language excluded employers with four employees or fewer. In 2018, the term “employer” was expanded to include all employers, but only as it related to claims of sexual harassment. All employers, regardless of size, are now covered by the New York Human Rights Law.
• “Severe and pervasive” requirement eliminated—The “severe and pervasive” requirement for hostile work environment claims has been eliminated — essentially overruling many judicial decisions. The new language states that it is 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 severe and pervasive under precedent applied to harassment claims.”
• Faragher/Ellerth—The new legislation all but eliminates the Faragher/Ellerth defense, which protected employers from liability if the employer exercised reasonable care to prevent and promptly correct the harassing behavior, and/or if the employee alleging harassment failed to take advantage of any preventive or corrective opportunities provided by the employer (e.g., by filing an internal complaint). The new language states that the failure of an employee to file an internal complaint “shall not be determinative of whether such employer . . . shall be liable.”
• Affirmative defense: petty slights and trivial inconveniences—The legislation does provide that “[i]t shall be an affirmative defense to liability under this subdivision 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.”
• Non-employees—Non-employees in the workplace now have expanded protections from all forms of unlawful discrimination. The legislation from 2018 only expanded liability of employers to non-employees for sexual harassment.
• Punitive damages—Punitive damages are now available against private employers for harassment and discrimination.
• Attorney’s fees—The court shall now award attorney’s fees to the prevailing party in any employment discrimination case. Previously such awards were discretionary and only available in sex discrimination cases.
• Liberal interpretation—New language makes clear that courts shall liberally construe the New York law for the remedial purpose, regardless of federal civil rights laws, and that “exemptions from the provisions of this article, shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”
• Non-disclosure agreements—Non-disclosure agreements are prohibited in any settlement for a claim of discrimination, unless it is the complainant’s preference. In addition, any term or condition in a non-disclosure agreement is void if it prohibits the complainant from initiating or participating in an agency investigation or disclosing facts necessary to receive public benefits. The bills require that employers notify employees that non-disclosure agreements in employment contracts cannot prevent them from talking to the police, the Equal Employment Opportunity Commission (EEOC), the State Division of Human Rights or a similar local entity, or a lawyer.
• Attorney General’s authority—The bills extend the authority of the Attorney General to prosecute certain civil and criminal cases of discrimination against all protected classes.
• Statute of limitations—Victims of sexual harassment will now have three years to file a complaint with the Division of Human Rights. The previous time frame was one year.

Governor Cuomo is likely to sign the legislation into law. Even though most employers updated policies in October 2018 as required by the previous legislation and initiated training, employers are well advised to seek counsel in further updating company policies and training to reflect the coming changes. If you have any questions regarding these changes, please reach out to:

• Caroline J. Berdzik
• Kristin Klein Wheaton
• Peter J. Woo
• Christopher P. Maugans
• Or another member of our Employment and Labor Practice Group