New York State Legislature Expands Protections Against Workplace Harassment and Discrimination Under New York Law

UPDATE: On August 12, 2019, Governor Andrew Cuomo signed this new bill into law. The alert below has been updated to reflect the dates that the various sections of the new law will take effect.

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The New York State Legislature recently passed a bill that significantly expands the protections against harassment and discrimination under New York law. Governor Andrew Cuomo is expected to sign this bill into law.

Key Changes Under This New Bill

This new bill includes the following changes for private employers:

(1)  Employers of All Sizes Are Covered.

This bill amends the New York State Human Rights Law (“NYSHRL”) to cover all New York employers. Presently, the NYSHRL applies only to private employers with four or more employees (except that private employers of all sizes are covered with respect to claims of sexual harassment).

This change will take effect on February 8, 2020 (i.e., 180 days after the law is enacted), and will apply to all claims filed on or after the law’s effective date.

(2)  Non-Employees Are Protected Against All Forms of Discrimination Prohibited Under the NYSHRL.

In 2018, the NYSHRL was amended to protect non-employees against sexual harassment in the workplace. See https://www.kmm.com/articles-500.html. This new bill expands upon this protection and provides that employers can be liable under the NYSHRL for all forms of unlawful discrimination in the workplace against “non-employees” (i.e., discrimination based on any protected characteristic, as opposed to only sexual harassment). “Non-employees” include contractors, subcontractors, vendors, consultants, or anyone else providing services pursuant to a contract in the workplace.

This change will take effect on October 11, 2019 (i.e., 60 days after the law is enacted), and will apply to all claims filed on or after the law’s effective date.

 (3)  Establishment of a More Lenient Standard for Recovery Under the NYSHRL.

Currently, plaintiffs asserting claims of harassment under the NYSHRL (and under federal law) must prove that they experienced “severe or pervasive” harassment based on a protected characteristic. This bill eliminates the requirement that conduct be “severe or pervasive” and replaces it with a lower standard: plaintiffs must prove that the harassment they experienced subjected them “to inferior terms, conditions or privileges of employment” because of their protected characteristic(s).[1]

This bill also provides that, the “fact that [an] individual did not make a complaint about… harassment to such employer… shall not be determinative of whether such employer… shall be liable [for such harassment].” Employers will therefore be unable to assert as an affirmative defense under the NYSHRL that an employee failed to complain about the alleged harassment by a supervisor under the employer’s anti-harassment policies and procedures.[2] Employers may, however, under this new bill, assert as an affirmative defense that a plaintiff’s harassment claim should be dismissed because “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.”[3]  These changes will take effect on October 11, 2019 (i.e., 60 days after the law is enacted), and will apply to all claims filed on or after the law’s effective date. 

(4)  The NYSHRL Will Be Construed Liberally to Accomplish Its Remedial Purpose

This bill amends the NYSHRL’s construction clause to reinforce that the NYSHRL will “be construed liberally for the accomplishment of the remedial purposes” of the law, “regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of [the NYSHRL] have been so construed.” Additionally, “[e]xceptions to and exemptions from the provisions [in the law] shall be construed narrowly in order to maximize deterrence of discriminatory conduct.” This change will take effect immediately after the law is enacted, and will apply to all claims filed on or after the law’s effective date.

(5)  Recovery of Punitive Damages and Attorneys’ Fees.

Under this bill, a prevailing plaintiff will be able to recover punitive damages under the NYSHRL. Additionally, an award of attorney’s fees under the NYSHRL “shall” be awarded to prevailing plaintiffs.

These changes will take effect on October 11, 2019 (i.e., 60 days after the law is enacted), and will apply to all claims filed on or after the law’s effective date.

(6)  Expansion of Restrictions on Confidentiality Provisions in Settlement Agreements.

In 2018, the New York General Obligations Law was amended to prohibit, in settlement agreements resolving claims of sexual harassment, the inclusion of “any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.” The complainant is given twenty-one days to consider the term or condition of confidentiality. If, after twenty-one days, such term or condition is the complainant’s preference: (a) this preference is memorialized in an agreement signed by all parties; and (b) for a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.

This new legislation:

• expands this restriction on the use of confidentiality provisions to apply to settlement agreements resolving all claims for which “the factual foundation… involves discrimination” (as opposed to only claims of sexual harassment); 
• requires that any term or condition of confidentiality must be provided in writing to all parties in plain English, and, if applicable, the primary language of the complainant; and
• provides that any term or condition in an agreement shall be void to the extent that it prohibits or otherwise restricts the complainant from (a) initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (b) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.

These changes will take effect on October 11, 2019 (i.e., 60 days after the law is enacted).

(7)   Confidentiality Agreements Must Now Carve Out Certain Disclosures to Third Parties

Under this new bill, any contract provision that prevents an employee or potential employee from disclosing factual information related to any future claim of discrimination will be void and unenforceable unless the provision notifies the employee or potential employee that he or she is not prohibited from speaking with law enforcement, the EEOC, the New York State Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.

This change applies to contracts entered into on or after January 1, 2020.

(8)  Mandatory Arbitration Clauses Are Prohibited For All Claims of Discrimination.

In 2018, the New York Civil Practice Law and Rules were amended to prohibit mandatory arbitration of sexual harassment claims. See https://www.kmm.com/articles-500.html.[4]  Under this new bill, mandatory arbitration provisions will now be prohibited for all claims of discrimination.

This change will take effect on October 11, 2019 (i.e., 60 days after the law is enacted).

(9)  Employers Must Distribute Their Anti-Harassment Policy and Training Materials To Employees At The Time of Hire and At Their Annual Training Sessions.

In 2018, the New York Labor Law was amended to require all employers to distribute a sexual harassment prevention policy to their employees and conduct annual sexual harassment prevention training. See https://www.kmm.com/articles-500.html.

Under this new legislation, employers will now be required, at the time of hire and at every annual sexual harassment prevention training, to provide employees with a written notice containing: (a) the employer’s sexual harassment prevention policy; and (b) the information presented at the employer’s annual sexual harassment prevention training program. This information must be provided in English and in the language identified by each employee as the primary language of the employee. The Commissioner of Labor will determine the languages in which the policy and training program information will be published, in addition to English, and prepare model templates in those languages. If an employee identifies as his or her primary language a language for which a template is not available from the Commissioner, the employer can comply with this requirement by providing the materials in English.

This change will take effect immediately after the law is enacted.

(10)   Expansion of the Statute of Limitations for Filing Sexual Harassment Complaints With the New York State Division of Human Rights.

Under this legislation, employees will have three years to file a complaint of sexual harassment with the New York State Division of Human Rights. Currently, the statute of limitations for filing this administrative claim is one year.[5] 

This change will take effect on August 12, 2020 (i.e., one year after the law is enacted).

Next Steps

As Governor Cuomo has now signed this new bill into law, and certain requirements take effect immediately, or within the coming weeks, employers should review their policies, new-hire notices, training materials, and agreements now to ensure that they are prepared to comply with the law when it takes effect.

Please do not hesitate to contact any of our attorneys if you have any questions regarding these changes or would like assistance reviewing and updating your company’s policies.

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[1] For New York City employers, a similar, lower standard currently applies to harassment claims under the New York City Human Rights Law. The “severe or pervasive” standard, however, will continue to apply to harassment claims under federal law.

[2] This defense, often referred to as the Faragher-Ellerth defense (based on the two U.S. Supreme Court cases which created it) may still be asserted in actions alleging harassment under federal law.

[3]  A similar standard currently applies to claims under the New York City Human Rights Law.

[4] Notably, if there is a conflict between any collective bargaining agreement and this law, the law provides that the collective bargaining agreement shall be controlling.

[5] If the employee files a lawsuit in court, a three-year statute of limitations applies to claims asserted under the NYSHRL.