New York Expands Workplace Harassment Protections –Employers Must Take Action

Amendments to the New York State Human Rights Law (NYSHRL) Make it Easier to Prove Workplace Harassment in New York

It is now easier to prove discriminatory harassment in New York. On August 12, 2019, the state enacted sweeping amendments to the New York State Human Rights Law (NYSHRL), including a provision specifying that harassment need not be “severe or pervasive” in order to be legally actionable.

Under Gov. Andrew Cuomo, New York has significantly strengthened its protections against workplace sexual harassment. In 2018, the state incorporated several new legal requirements into the budget, including provisions that prohibit certain mandatory arbitration clauses and nondisclosure agreements; require reimbursement of funds paid by state agencies, state entities and public entities for the payment of awards adjudicated in sexual harassment claims; expand the legal protection for non-employees; and establish a model policy and training program regarding the prevention of sexual harassment in the workplace.

Latest Amendments to New York Harassment Law

The latest legislation, Assembly Bill No. A8421, makes additional changes to the NYSHRL and expands many of the protections to all forms of harassment against protected classes. In addition, it lowers the bar for individuals pursuing harassment claims. Under the amended NYSHRL, a claimant need only prove that he or she has been subjected to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of [the] protected categories,” regardless of whether such harassment would be considered severe or pervasive under existing court precedent applied to harassment claims.

“By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equity for women,” Gov. Cuomo said in a statement.

Employers may raise the affirmative defense that the “harassing conduct 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.” However, the Faragher-Ellerth defense is no longer available. The long-standing defense provides that when no tangible employment action is taken, the employer may avail itself of an affirmative defense, provided that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Below is a brief summary of several other key changes to the NYSHRL:

• Coverage: The NYSHRL will now apply to all New York private employers, licensing agencies, employment agencies or labor organizations regardless of the number of employees. The amendments also extend protections against all forms of discrimination in the workplace to all contractors, subcontractors, vendors, consultants, or others providing services; and against all forms of discriminatory harassment to domestic workers.
• Notice requirement: Employers will need to provide their employees with notice about the employer’s sexual harassment prevention policy in English as well as the employee’s primary language.
• Statute of limitations: The statute of limitations for employment sexual harassment claims filed with the Division of Human Rights is extended from one year to three years.
• Non-disclosure agreements: In order to be enforceable, non-disclosure agreements (NDAs) in employment contracts must include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation. NDAs must also be written in English, as well as the employee’s primary language.
• Arbitration: Mandatory arbitration may not be used to resolve cases of discrimination and harassment in the workplace.

The new law will take effect in three phases. Effective immediately, employers must provide model sexual harassment policies and training materials in English and employee’s primary language. The elimination of the “severe and pervasive” standard takes effect in 60 days. Other provisions, such as extending the NYSHRL to all employers regardless of the number of employees, won’t take effect for 180 days.

Next Steps for New York Employers

Given the significance of the changes to New York law, employers should undertake a thorough review of their anti-harassment policies, procedures and training. Employment agreements, specifically those including mandatory arbitration and non-disclosure provisions, may also need to be amended to ensure compliance with the new requirements. For guidance, we recommend consulting with an experienced New York employment attorney.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Scott Heck, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.