Update: Expansive Harassment and Discrimination Legislation Signed Into Law in New York
Knowledge

Update: Expansive Harassment and Discrimination Legislation Signed Into Law in New York

Key Takeaways:

  • Andrew Cuomo signed expansive harassment and discrimination legislation into law

  • Law amends legislation passed in 2018

  • Key provisions of the law change the legal standard for maintaining harassment and discrimination claims against employers, the statute of limitations, as well as the availability of punitive damages and attorney’s fees in these cases

On August 12, 2019, New York State Gov. Andrew Cuomo signed expansive harassment and discrimination legislation (A08421 and S06577) into law. This law amend the legislation that passed in 2018. As noted in our previous article, the key provisions of the law change the legal standard for maintaining harassment and discrimination claims against employers, the statute of limitations, as well as the availability of punitive damages and attorney’s fees in these cases.

 Key Provisions of A08421 and S06577

  • Expansion of “employer”—Effective February 8, 2020. The term employer now includes “all employers within the state including the state and all political subdivisions thereof.” All employers, regardless of size, are now covered by the New York Human Rights Law.
  • “Severe and pervasive” requirement eliminated—Effective October 11, 2019, and to claims filed on or after that date. 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—Effective October 11, 2019, and to claims filed on or after that date. 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.”
  • Non-employees—Effective October 11, 2019, and to claims filed on or after that date. Non-employees in the workplace now have expanded protections from all forms of unlawful discrimination.
  • Punitive damages—Effective October 11, 2019, and to claims filed on or after that date. Punitive damages are now available against private employers for harassment and discrimination.
  • Attorney’s fees—Effective October 11, 2019, and to claims filed on or after that date. 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 it 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—Effective October 11, 2019. 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 law requires 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, a similar local entity, or a lawyer.
  • Attorney general’s authority—The law extends the authority of the attorney general to prosecute certain civil and criminal cases of discrimination against all protected classes.
  • Statute of limitations—Effective August 12, 2020. 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.

Even though most employers updated their policies in October 2018, as required by the previous legislation and initiated training, employers are advised to seek counsel in further updating company policies and training to reflect these changes. If you have any questions regarding these changes, please contact: