UPDATE: On August 12, 2019, Governor Cuomo signed into law the sweeping workplace harassment legislation expanding and strengthening employee’s rights. Many of the new provisions will take effect 60 days from the date of signing, including the lower burden of proof for alleging harassment. The definition of “employers” to include all New York employers will take effect in 180 days. All New York employers should start reviewing their mandatory arbitration provisions, non-disclosure provisions, and training for compliance with the new law.
New York state lawmakers recently voted to approve a sweeping set of new reforms that will make it easier for claimants alleging workplace sexual harassment under the New York State Human Rights Law (NYSHRL). These reforms are a result of more than a year of lobbying across the state by supporters of the #MeToo movement and former legislative staffers who have claimed they were victims of sexual harassment during their employment in state government. Gov. Andrew Cuomo has lauded the new legislation and shown his support by promising to sign the bill.
The new reforms significantly expand and toughen prohibitions against workplace harassment and discrimination. The new bill contains provisions that will directly affect private employers.
Lower Burden of Proof for Harassment Claims
Under the NYSHRL, and similarly under federal anti-discrimination law, a claimant must demonstrate that the alleged form of workplace harassment was “severe and pervasive.” The new bill, however, seeks to
eliminate this high burden of proof, instead instructing that the NYSHRL be interpreted liberally. Specifically, the new bill eliminates the “severe and pervasive” requirement, finding harassment to be unlawful if the claimant
is subjected to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories” under the NYSHRL.
In addition, a claimant does not need to provide that the employer treated the claimant differently from employees who did not belong to the same protected category. Under the new bill, the NYSHRL provides that, "nothing in this section shall imply that an employee must demonstrate the existence of an individual to whom the employee’s treatment must be compared." However, the bill does afford the employer an affirmative defense to liability. An employer will not be found to have engaged in workplace harassment if the alleged conduct comprises only "petty slights or trivial inconveniences." These provisions will take effect 60 days after Gov. Cuomo signs the bill into law, and apply only to claims filed on or after that date.
Expansion of Covered Employers
The bill provides for a broader definition of what constitutes an "employer," extending the meaning under the NYSHRL to cover all employers within New York state. The current law restricted coverage of “employers” to only those employers with four or
more employees. This new definition will become effective 180 days after the bill becomes law and only applies to claims filed on or after the effective date.
Additionally, the bill includes “private employer” in its definition, which includes "any person, company, corporation, labor organization or association." Individual employees should especially be aware of this addition, as the inclusion of “person” within
the definition will result in direct employer individual liability under the NYSHRL. This provision takes effect 60 days after the bill becomes law. The bill builds on the New York state law that made an employer liable to a "non-employee” who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract, when the employer knew or should have known that the non-employee was subjected to sexual harassment in the employer’s workplace. The bill extends protection against discrimination on the basis of any protected category under the NYSHRL to those “non-employees." This provision takes effect 60 days after the bill becomes law. The bill provides additional protection for domestic workers, allowing them to bring harassment claims on the same basis as other employees under the NYSHRL.
No More Two-Part Faragher-Ellerth Affirmative Defense for Employers
The bill removes an employer’s ability to rely on the Faragher-Ellerth affirmative defense. Established in two Supreme Court cases in 1998, the Faragher-Ellerth defense was fashioned to protect an unwitting employer from liability. Specifically, the defense
allows for employers to escape liability where they can show:
1. They “exercised reasonable care” to prevent and correct sexual harassment; and
2. That the claimant “unreasonably failed to take advantage of any preventative or corrective opportunities” the employer provided.
It is no longer the case, under the NYSHRL, that a claimant cannot move forward with a workplace harassment claim for failure to take advantage of the internal procedures of its employer. This provision takes effect 60 days after the bill becomes law.
Expanded Restraints on Non-Disclosure Agreements
Prior New York legislation, effective July 11, 2018, limits the use of non-disclosure agreements to resolve sexual harassment claims. The new bill expands this limitation to all discrimination, harassment and retaliation claims. However, non-disclosure agreements are not entirely prohibited, but rather are allowed at the behest of the claimant. The non-disclosure agreement must be in English or, if applicable, the primary language of the claimant. A non-disclosure agreement provision is void if it bans the claimant from initiating or contributing to an agency investigation or disclosing facts necessary to receive unemployment insurance, Medicaid, or other public benefits. A non-disclosure agreement provision in an employment agreement is void as to future discrimination claims unless the provision notifies the employee that they are not prohibited from disclosure to law enforcement, the Equal Employment Opportunity Commission, the New York State Division of Human Rights, a local commission on human rights, or an attorney retained by the employee. The bill provides that a claimant must be given 21 days to consider any non-disclosure agreement. If after the 21 days the claimant wishes such an agreement, it must be memorialized. The claimant is also given seven days to revoke the non-disclosure agreement after signing.
Prohibitions on Compulsory Arbitration
The New York legislation effective July 11, 2018, prohibits provisions mandating arbitration of sexual harassment claims from being written into employment contracts. The new bill extends this prohibition to include all harassment, discrimination or retaliation claims. There may be preemption challenges where the Federal Arbitration Act and the state law both apply. This provision takes effect 60 days after the bill becomes law.
Expanded Punitive Damages and Award of Attorney’s Fees
The new bill allows for a claimant who has succeeded in proving a workplace harassment to be awarded unbound punitive damages. The bill also allows for mandatory attorney’s fees for the successful claimant. Under current law, the court has discretion whether to grant attorney’s fees, but claimants will now have a right to those fees. Employers also can ask the court to award attorney’s fees where the workplace harassment claim is disingenuous. This provision takes effect 60 days after the bill becomes law.
Longer Statute of Limitations
Effective one year after the bill becomes law, claimants will have three years to file claims of workplace harassment to the New York State Division of Human Rights. This extends the statute of limitations from the current one-year period in which to file a claim.
Notice of Sexual Harassment Policy
At the time of hire, and during subsequent annual sexual prevention trainings, an employer is required to give the employee notice of the employer’s sexual harassment prevention policy and information provided at the employer’s training program.
This important bill greatly strengthens and expands New York state’s workplace harassment law. All employers should take measures to comply with the new bill, as Gov. Cuomo is expected to sign the bill shortly. Most of the bill’s provisions will take effect 60 days after it becomes law.
We will continue to monitor this bill and report on any new updates.