New York State Legislature Passes “Game-Changing” Bill Extending Workplace Discrimination and Harassment Protections

Last year, New York State passed legislation that dramatically increased the legal protections against sexual harassment, including requiring all employers to adopt a sexual harassment policy and implement annual sexual harassment training for all employees. Late last week, the Democratic-controlled New York State Legislature passed a bill containing several even more sweeping laws further extending protections against not only sexual harassment, but also against all forms of discrimination and harassment in the workplace. If signed into law by Governor Andrew Cuomo, as is expected, these new laws will alter the legal landscape of employment discrimination and harassment in New York on a scale not seen in recent memory. The new laws would amend the New York State Human Rights Law (“Human Rights Law”) and other laws to establish some of the strongest protections in the country for combating employment discrimination and harassment. The most significant changes would increase the number of employers covered by the Human Rights Law, make it easier for employees to prove harassment, allow successful plaintiffs to recover attorneys’ fees and punitive damages, and extend to three years the time individuals have to file a charge of sexual harassment with the New York State Division of Human Rights (“Division”). This alert provides an overview of the changes for employers so they can be prepared for these new laws.

All Employers Will Be Covered by the Human Rights Law

A proposed amendment to the Human Rights Law would increase the number of employers covered by the law by extending its coverage to all employers regardless of size. Currently, the Human Rights Law applies only to employers with four or more employees, except for the prohibition against sexual harassment that applies to all employers. As a result, numerous small employers in New York State would, for the first time, have to comply with the Human Rights Law.

It Will Be Easier for Employees to Prove Harassment

Another proposed amendment to the Human Rights Law would remove the requirement that harassment be “severe or pervasive” to constitute illegal harassment, as is required under federal law. In its place, employees would be able to prove that they were illegally harassed merely by showing that they experienced “inferior terms, conditions or privileges of employment” based on any characteristic protected by the Human Rights Law. The proposed amendment also provides that an employee would not have to compare his or her treatment to another employee to prevail in such a case. Nor would the fact that an employee failed to use an employer’s complaint procedure bar an employee from suing for harassment. Employers would, however, be able to assert as an affirmative defense that the alleged harassment “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 Will Be Protected from All Forms of Harassment

Last year, the Human Rights Law was amended to protect non-employees in the workplace, such as contractors and vendors, from sexual harassment. Under this new legislation, the protections for non-employees would be expanded to protect them from harassment based on any characteristic protected by the Human Rights Law, such as race, age and disability.

Attorneys’ Fees and Punitive Damages Will Be Recoverable for All Employment Claims

Under the amendments to the Human Rights Law, attorneys’ fees and punitive damages would be recoverable in all employment discrimination and harassment claims. Currently, in the employment context, punitive damages are not recoverable and attorneys’ fees are only recoverable where the basis of the discrimination or harassment claim is sex.

Employees Will Have More Time to File an Administrative Charge for Sexual Harassment

Another amendment to the Human Rights Law would extend the time an individual has to file a charge with the New York State Division of Human Rights for sexual harassment in employment from one year to three years.

Sexual Harassment Policies and Training Materials Will Have to Be Provided in Writing in Both English and an Employee’s Primary Language

Employers are currently required to have a sexual harassment policy and to provide all employees with annual sexual harassment training. Employers are also required to provide new hires with sexual harassment training as soon as possible after hire. An amendment to the New York Labor Law will require that at the time of hire, and at every annual sexual harassment training, employees receive a written copy of the employer’s policy and the sexual harassment training materials in both English and the language identified by each employee as his or her primary language. The Division of Human Rights will be charged with making available to employers template policies and training materials in both English and such other languages as the Division deems appropriate, which employers will be able to use to meet these notice requirements. Where an employee identifies as his or her primary language a language for which the Division has not published a template, an employer will be able to comply with the notice requirements by providing the employee an English-only notice.

Mandatory Arbitration Will Be Prohibited for All Forms of Discrimination and Harassment

Last year, New York State amended the New York Civil Practice Law and Rules (CPLR) to ban mandatory arbitration of any claim based on sexual harassment. Under the passed legislation, the ban on mandatory arbitration will now be extended to all forms of discrimination and harassment prohibited by any law, including the Human Rights Law. However, as mentioned in our April 2018 alert, this ban may be subject to preemption by federal law, which allows mandatory arbitration of employment claims.

Nondisclosure Agreements Will Be Further Restricted

In July 2018, the New York General Obligations Law and CPLR were amended to prohibit nondisclosure clauses in any agreement settling or resolving any claim or action involving sexual harassment that prevent the disclosure of the underlying facts and circumstances of the claim or action, unless it is the complainant’s preference to include such a clause. The complainant must also receive 21 days to consider the clause and then have seven (7) days to revoke it.

Under the new legislation, such nondisclosure clauses will be prohibited in any agreement settling or resolving any claim or action involving any claim of discrimination or harassment – not just those involving sexual harassment. The amendments also prohibit any clause that restricts a complainant’s ability to file a charge with, or provide information to, any federal, state or local agency, or to disclose information necessary to receive unemployment benefits, Medicaid or any other public benefit. Lastly, the amendments prohibit any provision in any contract or other agreement that prevent the disclosure of factual information related to any future claim of discrimination, unless the provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the Equal Employment Opportunity Commission, the Division of Human Rights, a local commission on human rights or any attorney retained by the employee or potential employee.

As a result of these proposed and earlier changes, employers must be even more vigilant in preventing discrimination and harassment and responding to and investigating claims when they arise. To meet these challenges, employers should ensure that all employees, managers and supervisors are properly trained about their policies against discrimination and harassment and how to report it when it occurs. Employers that need assistance with complying with the new laws should contact one of Phillips Lytle’s experienced employment attorneys.

Additional Assistance

Should you have any questions regarding New York State’s anti-discrimination and harassment legislation, or any other labor and employment matter, please contact any of the attorneys on our Labor & Employment Practice Team.