June 2019 Update: New York State Expands its Harassment, Discrimination, and Retaliation Laws
On June 19th, 2019, the New York State legislature revised New York’s sexual harassment and discrimination laws to provide additional protections for employees and additional responsibilities for employers. The legislation is expected to be signed by Governor Cuomo, with changes taking effect 60 days after for claims filed on or after the enactment date, unless otherwise specified below.
Required Distribution of Written Anti-Harassment Policy and Information from Training Program.
Employers must now provide employees in New York with notice at the time of their hire and during annual sexual harassment training. The notice must include the employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.
Employers must provide the required information in English and in the language identified by each employee as the primary language of that employee at the time of hire.
The state will publish a model policy in languages other than English (depending on the prevalence of each language in the state). New York employers are not required to provide their policy in another language if the state has not published a template in that language. This change goes into effect immediately on enactment.
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Burdens of Proof Lowered.
Perhaps most significantly, workplace harassment claims will have a lower standard of proof. Specifically, harassment based on sex or any other protected characteristic will be unlawful “regardless of whether such harassment would be considered severe or pervasive.”
In the past, New York State law was the same as federal law, in that it required an employee to prove that the harassment that he or she suffered was “severe or pervasive” to bring a claim against an employer. New York State law is now similar to New York City law, removing this standard. In 2005, New York City eliminated the “severe or pervasive” standard such that an employee bringing a harassment or retaliation claim only needs to show that the alleged conduct is more than “petty slights and trivial inconveniences.”
In addition, the New York State law now prevents employers from raising the defense that the employee did not use the employer’s internal complaince procedure. Going forward, under New York State Law, “[t]he fact that such individual did not make a complaint about the harassment to such employer shall not be determinative of whether such employer shall be liable.”
For discrimination claims, employees will no longer be required to demonstrate that they were treated less favorably than a comparable employee outside of the relevant protected category.
These changes will take effect 60 days after enactment for claims filed on or after
Statute of Limitations in Sexual Harassment Claims Extended.
Sexual harassment claimants now have three years to bring a sexual harassment claim under state law, whether filing in an administrative agency or in court. This statue of limitations was extended from the previous one year limit for filing in administrative agencies. This change takes effect one year after enactment for claims filed after.
Employers Can Be Liable for Discrimination Against a Contractor.
In 2018, New York State expanded its sexual harassment prohibitions to include contractors. Under the new law, contractors are now also protected from any type of workplace discrimination or retaliation. Specifically, the law states that, “[a]n employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”
Employers May Face Punitive Damages.
New York State law will now allow the imposition of punitive damages against employers in harassment, discrimination, and retaliation lawsuits brought under state law.
Attorney Fees “Shall” be Granted to the Prevailing Party.
The New York Human Rights Law now states that an employee who prevails before a court or the Division of Human Rights “shall” receive attorney fees. Previously, such an award was discretionary. If an employer prevails, it may only seek attorney fees if it can show that the plaintiff’s case was frivolous (continued in bad faith). This change goes into effect immediately once the law is enacted.
The Law Must be Construed to Maximize Deterrence.
New York State law must now be construed liberally to “maximize deterrence of discriminatory conduct.” Exceptions to the law is to be narrowly construed, and applies even where there may be divergence from comparable federal law. This change goes into effect immediately once the law is enacted.
NDA’s Restricted for All Types of Discrimination Cases, Not Just Sexual Harassment.
In 2018, New York State limited the use of nondisclosure agreements (NDAs) in sexual harassment cases. The new law applies the restrictions on NDA’s not only to sexual harassment claims, but to all types of harassment, discrimination, and retaliation claims.
Specifically, employers now may not include NDAs in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, 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.”
Mandatory Arbitration Clauses Prohibited.
In 2018, New York disallowed mandatory arbitration of sexual harassment claims. The state now prohibits mandatory arbitration clauses not just for sexual harassment claims, but also for any discrimination or retaliation claim.
Learn More.
While many providers offer training on preventing workplace harassment, few have the legal and instructional design expertise required to comply with certain harassment training laws, such as those in New York. Clear Law Institute’s hundreds of clients can sleep well knowing that we monitor laws around the country to ensure that our training stays up-to-date with changes in the law, such as these above. Clear Law has modified its courses to comply with changes in New York State and New York City laws. Importantly, Clear Law does not charge its clients to update its course content due to changes in the law. Clear Law Institute ensures that its online training is legally accurate and ready to be delivered to your employees. Clear Law Institute’s online course, Preventing Workplace Harassment, is used by hundreds of employers across the nation, including several Fortune 500 companies.
Learn more about Preventing Workplace Harassment and view a free course demo.
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