New York State Passes Sweeping Changes to Work Place Harassment Laws

As we previously reported in our October 2018 Employment & Labor Bulletin, employers must ensure their anti-harassment policies meet the state minimum requirements and implement the state-required harassment prevention training on or before October 9^th. For employers in New York City there are additional requirements under the Stop Sexual Harassment in NYC Act.

In addition to these requirements, on August 12, 2019, New York Governor Andrew Cuomo signed into law sweeping reforms to the work place harassment laws.  There are a number of technical and substantive changes to the New York State Human Rights Law, which apply to all New York businesses.  The majority of these changes will take effect in 60 days, on October 11, 2019, with the exception of the “employer” definition expansion, which will take effect on February 8, 2020 and the extended statute of limitations period, which will take effect August 12, 2020.

Following is a review of the major changes:

1. Interpretation changes –

a. First, the new law specifically lowers the standard of proof required to establish work place harassment. Rather than the broader and more employer favorable interpretation that work place harassment must be “severe or pervasive” to be actionable, now an employer must show that the conduct in question was a “petty, slight, or trivial inconvenience” to escape liability.

b. Second, the law now removes the defenses commonly known as the Faragher/Ellerth.  Under New York State laws’ previous interpretation, an employer could escape liability by showing the employee never utilized its internal complaint procedure.  Now, the fact that an employee never reported any harassing behavior does not eliminate liability.  Rather, it is part of evaluating the overall context of the action.

c. Third, employees no longer need to show that they were treated less favorably than an employee who is considered outside the person’s protected classification.

d. Lastly, the law also includes a section emphasizing the remedial purpose of the law and further emphasizing that irrespective of the Federal Civil Rights Law and interpretations thereunder, “exceptions and exemptions to the provisions of the Article shall be narrowly construed in order to maximize the deterrence of discriminatory conduct.”

2. The expansion of provisions previously linked to sexual harassment –

a. The law explicitly provides that the provisions and interpretations set forth above not only apply to sexual harassment, but to all forms of harassment and discrimination.

b. Furthermore, the act also expands remedies and provisions that previously only applied to sexual discrimination or sexual harassment.  Anti-discrimination remedies include (i) punitive damages against private employers for all discrimination claims, including the award of punitive damages in both administrative and private actions; (ii) attorney’s fees for all discrimination claims and takes away the Court’s discretion with respect to the awarding of attorney’s fees. The law also expands its protection to include non-employees.

3. The law sets forth a three-year statute of limitations with respect to filing an administrative sexual harassment claim.

4. The law also amends the non-disclosure requirements that had previously been in place with respect to only sexual harassment claims and extends these protections to all claims involving the Human Rights Law.  This includes the requirement that all agreements be in plain English and any non-disclosure provision is void to the extent it prohibits any person from initiating a claim, testifying, cooperates with, or responds to a subpoena in any matter conducted by a local State or Federal agency, or filing and disclosing facts necessary to receive unemployment, Medicare or other benefits.

5. Lastly, the law formally codifies the distribution of the model sexual harassment policy and the training requirements in the law and sets up a procedure for it to be evaluated by the DOL every two years.

While the new law has been widely publicized as focusing on sexual harassment claims, the actual legislation will affect harassment, discrimination and retaliation claims of all kinds as well as employer compliance programs across the board.  We will continue to address the practical implications of this new legislation over the coming days.  If you have any questions about these new anti-discrimination laws and requirements, please contact an attorney in the labor and employment practice group.