July 19, 2019
In a continuation of the 2018 push for new and stronger laws addressing harassment in the workplace in the wake of the #MeToo movement, the New York State Legislature was at it again last month, expanding many of the newly strengthened provisions addressing sexual harassment to all forms of discrimination. On June 19, 2019, the New York State Legislature passed measures that will have far-reaching consequences for employers and employees. In addition to expanding the scope of many of the New York State Human Rights Law’s provisions, the law also expands the employers covered by the law, upends long-held standards used by courts to interpret the law, and expands prohibitions on certain nondisclosure agreements and mandatory arbitration agreements. Governor Andrew M. Cuomo supported the legislation, and has stated he will sign it into law.
Employers and employees should be mindful of these important updates to longstanding workplace norms. Important changes, and when they will go into effect, are summarized below:
1) The New York State Human Rights Law shall apply to all employers.
Prior to 2018, the New York State Human Rights law applied only to employers with four or more employees. Last year, the State Legislature amended the law so that it applied to all New York State employers with respect to claims of discrimination based on sex. The 2019 amendment declares that the law applies to all New York State employers with respect to any claims brought under the Human Rights Law. This provision will go into effect 180 days after the bill is signed into law, and will only apply to claims brought after its effective date.
2) The New York State Human Rights Law is to be construed independently from its federal counterparts and the standard to prove harassment under the law has been lessened.
Prior to 2005, courts typically interpreted the federal, New York State and New York City anti-discrimination laws based on the same standard. In 2005, the New York City Commission on Human Rights passed the Local Civil Rights Restoration Act, declaring that the New York City Human Rights Law should be construed liberally and independently from its federal and State counterparts. The Restoration Act led courts to interpret the New York City Law under a far more permissive standard going forward. The recently passed New York State legislation attempts to similarly move interpretation of the State law away from its federal counterparts and closer to New York City’s permissive standards. The legislation states that the New York State Human Rights Law must be construed independently from federal civil rights laws, and exceptions and exemptions from the law must be construed narrowly. The legislation also addresses specific areas in which the New York State Human Rights Law’s interpretation will be more permissive than its federal counterparts going forward. Perhaps most significant is the elimination of the long-standing “severe or pervasive” standard that was previously required for employees to prove a claim for harassment. The new law explicitly states that employees need not meet this standard in order to prove a claim for harassment. Instead, it places the burden on employers to prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristics would consider petty slights or trivial inconveniences.”
Additionally, the law eliminates one aspect of the “Faragher-Ellerth” defense, which employers commonly invoke in response to claims of discrimination. Under the new law, the fact an employee did not first make an internal complaint about the harassment prior to filing a claim is not determinative as to whether the employer is liable. State Legislators have noted the change is in recognition of the fact it is often difficult for employees to speak up about discrimination in the workplace, particularly when the perpetrator of the harassment is the same person to whom they must report such incidents.
The independent interpretation of the New York State Human Rights shall be effective immediately once the law is enacted, but shall apply only to claims filed after the law’s effective date. The elimination of the “severe or pervasive” standard, and of the defense that an employee failed to file an internal claim, shall go into effect 60 days after the law is enacted, and shall also only apply prospectively.
3) Expansion of employers’ liability for non-employees in the workplace
An important change to the New York State Human Rights Law in 2018 extended employers’ liability for sexual harassment to non-employees in the workplace, including contractors, subcontractors, vendors, consultants, or others providing services pursuant to a contract in the workplace, when the employer knew or should have known about the harassment and failed to take “immediate and appropriate corrective action.” The 2019 legislation builds upon this change by extending employers’ liability to any unlawful discriminatory practice – not just sexual harassment. This change goes into effect 60 days after the law is enacted, and applies only to claims that accrue after its effective date.
4) Expansion of restrictions on nondisclosure and mandatory arbitration provisions
The 2018 legislation prohibited the inclusion of nondisclosure provisions regarding claims for sexual harassment in settlement agreements, unless the confidentiality is the claimant’s preference. It also banned the inclusion of mandatory arbitration clauses with respect to claims for sexual harassment in any type of agreement. The 2019 legislation expands these restrictions on nondisclosure provisions and mandatory arbitration clauses to apply to any type of claim for discrimination. The new legislation also requires that any nondisclosure provisions related to discrimination claims in employment agreements notify the employee that he or she is not prohibited from speaking with law enforcement, relevant enforcement agencies, or an attorney regarding such discrimination claims.
The expansion of the nondisclosure prohibition and mandatory arbitration ban to all claims of discrimination shall go into effect 60 days after the law is enacted. The increased requirements of nondisclosure provisions in employment agreements shall apply to agreements entered into on or after January 1, 2020.
5) Extension of statute of limitations for sexual harassment claims
Another change that brings the New York State law closer to the New York City law is the extension of the statute of limitations for claims of sexual harassment filed with the New York State Division on Human Rights from one to three years. Claimants still have one year to bring any other type of discrimination claim to the State agency. This new provision mirrors the New York City Law, which last year was amended to allow three years to bring claims of gender-based harassment before the City agency. Claimants have always had three years to bring all discrimination claims under the State and City laws in State Court. The extended statute of limitations shall go into effect one year after the law is enacted, and shall apply only to claims filed on or after its effective date.
6) The allowance of punitive damages
The New York State Human Rights Law used to stand apart from its federal and City counterparts due to the unavailability of punitive damages for employment discrimination claims under the statute, but the new legislation has eliminated this distinction. The New York Court of Appeals previously interpreted the New York City Human Rights Law to allow for punitive damages where the wrongdoer’s actions amount to willful or wanton negligence, recklessness, or where there is “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.” Courts are likely to apply a similar standard to awards of punitive damages under the New York State law. The legislature has not set a cap for such damages. Punitive damages will become available 60 days after the law is enacted, and the amendment shall only apply to claims filed on or after the effective date.
7) Additional requirements for sexual harassment prevention policies and trainings
As we have previously explained, 2018 saw the implementation of the requirement that all New York State employers provide employees with sexual harassment prevention training, as well as a sexual harassment prevention policy that meets minimum standards put forth by the State. The 2019 law requires employers to provide a copy of their policies to employees both at the time of hire and at the employer’s sexual harassment prevention training. It also requires the Commissioner of Labor to create model policies in alternative languages to be determined based on New York State’s population. Where an employee identifies his or her primary language as a language other than English, but a corresponding translation is not available from the State, an English-language notice shall suffice. These amendments shall go into effect as soon as the bill is signed into law.
Next Steps for Employers
The 2019 legislation adds to an already tricky landscape for New York employers to navigate. In response to the new legislation, employers should update their anti-discrimination policies to reflect New York’s new standards and to prohibit discrimination of non-employees in the workplace. Employers should also update all employment and settlement agreement templates to eliminate the prohibited nondisclosure or mandatory arbitration clauses, and add the nondisclosure disclaimer where required.
Attorneys from Reavis Page Jump LLP are available to answer any questions regarding compliance with the new laws. Our live and online training programs will ensure employers receive up-to-date training with respect to the new laws.
To learn more about our training programs for your company, or if you seek assistance with a particular employment law or labor law matter, please contact Deena R. Merlen by email at firstname.lastname@example.org or by calling our offices at 212-763-4160 (NY) or 203-653-4422 (CT).