August 2019 Update: New York State Expands its Harassment, Discrimination, and Retaliation Laws
On August 12, 2019, Governor Cuomo signed Assembly Bill A8421, which significantly expands New York State sexual harassment and discrimination laws. These changes are in addition to the significant legislation that New York enacted in 2018. The changes took effect on October 11, 2019. This article discusses the specific 2019 changes from this new legislation. To learn more about the current state of the New York law, including these changes, please visit our white paper here.
Required Distribution in Writing of Anti-Harassment Policy and Information Presented in the Employer’s Training Program
Employers must now provide employees in New York with written notice at the time of their hire and during annual sexual harassment training. The notice must include (1) the employer’s sexual harassment prevention policy and (2) the information presented in the employer’s sexual harassment prevention training program.
Employers must provide the required information in English and in the language identified by each employee as his or her primary language.
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 requirement to provide notice at the time of hire and during annual training goes into effect immediately.
Burden of Proof Lowered
Workplace harassment claims filed under New York State law now have a lower standard of proof than claims filed under federal law. Specifically, harassment based on sex or any other protected characteristic will be unlawful “regardless of whether such harassment would be considered severe or pervasive,” which is the standard used under federal law. A plaintiff now needs to demonstrate only that the harassment subjected him or her to “inferior terms, conditions, or privileges of employment” for the harassment to violate New York State law.
New York State law is now similar to New York City law. 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.”
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. This change takes effect for claims filed on or after October 11, 2019.
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“Faragher-Ellerth” Affirmative Defense Eliminated
In addition, New York State Law now eliminates the “Faragher-Ellerth” affirmative defense that employers can use under federal law whereby an employer may avoid liability by showing that: (1) the employer tried to prevent and correct harassing conduct; and (2) the employee unreasonably failed to take advantage of the employer’s preventative or corrective opportunities (such as the employer’s internal complaint procedures). Under the New York 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.” This change takes effect for claims filed on or after Ocotber 11, 2019.
Statute of Limitations for Sexual Harassment Claims Extended
Sexual harassment claimants now have three years to bring a sexual harassment claim under state law, whether filing with an administrative agency or in court. This statue of limitations was extended from the previous one-year limit for filing with administrative agencies. This change takes effect for claims filed on or after Ocotber 11, 2020.
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.
The Law Must be Construed to Maximize Deterrence
New York State law must now be construed liberally to “maximize deterrence of discriminatory conduct.” This change goes into effect immediately.
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 also 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
Under the 2018 law, New York prohibited employers from requiring employees to arbitrate sexual harassment claims. The state now prohibits mandatory arbitration clauses not just for sexual harassment claims, but also for any discrimination or retaliation claim. (In June 2019, in the case of Latif v. Morgan Stanley, a federal judge in the Southern District of New York ruled that the ban on arbitration of sexual harasssment claims conflicts with the Federal Arbitration Act (“FAA”), and is therefore unenforceable.)
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, Positive Workplace: Preventing Harassment at Work, is used by hundreds of employers across the nation, including numerous Fortune 500 companies.
About the Author
Michael Johnson, CEO of Clear Law Institute, is a former U.S. Department of Justice attorney who brought one of DOJ’s first “pattern or practice” sexual harassment cases. He has provided training and consulting on harassment prevention or investigations to organizations around the world, such as the EEOC, the United Nations, and Google. He is a graduate of Duke University and Harvard Law School. Read more about Michael here.