One year after enacting sweeping legislation targeting sexual harassment, the New York State Legislature capped off its 2019 legislative session by passing a flurry of laws aimed at keeping New York State at the forefront when it comes to preventing all forms of discrimination and harassment in the workplace. The new legislation builds on the 2018 anti-sexual harassment legislation by amending the New York State Human Rights Law (NYSHRL) to, among other things, (a) lower the burden of proof for complainants to bring workplace harassment claims; (b) broaden the definition of a covered employer under the NYSHRL; (c) expand the coverage of the statute to apply to non-employees, such as contractors and vendors; (d) extend the applicable statute of limitations period; and (e) provide for the recovery of punitive damages and attorneys' fees. The bottom line for employers is that proactively preventing discrimination and harassment in the workplace must be an ongoing priority and current policies and procedures will need to be reevaluated to address the heightened risk associated with such conduct.

Assuming the new legislation is signed by Governor Cuomo as expected, the most significant changes include:

  • Elimination of the "severe or pervasive" standard: Currently under the NYSHRL and federal anti-discrimination law, workplace misconduct does not rise to the level of a hostile work environment unless it is "severe or pervasive" enough to alter employment conditions and create an abusive working environment. Effective 60 days after it is signed into law, the new legislation will eliminate this "severe or pervasive" standard. Instead, employers will be liable for any harassing conduct which "subjects an individual to inferior terms, conditions or privileges of employment because of the individual's membership" in a protected class. However, employers may raise as an affirmative defense to liability that the harassing conduct does not rise above the level of what a "reasonable victim of discrimination" in the same protected class would consider "petty slights or trivial inconveniences," which is the same standard that has been adopted with regard to harassment claims asserted under the New York City Human Rights Law (NYCHRL). The elimination of the "severe or pervasive" standard for harassment claims under the NYSHRL substantially lowers the bar for proving discriminatory harassment, and will require employers to update and enforce their discrimination and harassment policies and procedures accordingly.
  • Employee's failure to complain is no longer a defense: New York State courts currently recognize the Faragher-Ellerth defense, which allows employers to avoid liability under the NYSHRL if they are able to show that they exercised reasonable care to prevent and promptly correct any harassing behavior and the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Effective 60 days after the new legislation is signed into law, the fact that an individual did not make a harassment complaint to their employer will no longer be determinative as to whether an employer is liable for workplace harassment under the NYSHRL. What this means is that human resource professionals and managers must be proactive in identifying and correcting possible workplace harassment and cannot simply rely on the employer's complaint procedure as the primary method by which they detect and address incidents of harassment. This change also places an added emphasis on the need for employers to overhaul their harassment prevention trainings to ensure that they are effective in preventing incidents of harassment in the first instance.
  • Expanded protections for all protected classes, non-employees and employees of small employers:The new legislation expands the NYSHRL's prohibitions against unlawful discriminatory practices to cover (i) non-employees, including contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract, and (ii) all employers, regardless of the number of employees in the state (the NYSHRL currently only applies to employers with four or more employees, except for claims of sexual harassment, which already applies to all employers).
    Additionally, the new legislation eliminates the distinction between sexual harassment and harassing conduct based on other protected classifications, and applies the new standards uniformly across all protected classes (i.e., age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status). For example, (i) the prohibition on the use of nondisclosure (confidentiality) provisions in agreements settling claims of sexual harassment will now apply to claims of discrimination based on any protected class, unless it is the "complainant's preference" that a nondisclosure provision be included (which requires, among other things, the complainant to be given 21 days to review the terms of the non-disclosure provision and 7 days to revoke after signing), and (ii) the prohibition on the use of mandatory arbitration agreements (with the exception of arbitration agreements included within collective bargaining agreements) will apply to all claims of discrimination. However, the prohibition on mandatory arbitration is likely preempted by federal law favoring the enforcement of arbitration agreements to the extent it applies to contracts involving or affecting interstate commerce, and one court in the Southern District of New York recently held just that.
  • Expansion of equal pay protections and pay history ban: The new legislation also includes new and expanded protections aimed at addressing gender- and race-based pay gaps. First, effective 90 days after the legislation is signed into law, the state's equal pay law barring sex-based pay disparities will be expanded to cover all protected classes. This amendment to the state's equal pay law also prohibits employers from paying workers differently for "substantially similar" work, which is less strict than the current standard of "equal" work. Lastly, effective 180 days after the legislation is signed into law, employers will be prohibited from inquiring about an applicant's past salary history or using such information in deciding whether to make an offer of employment or in determining a new employee's salary. This law mirrors the salary history ban currently in effect under the NYCHRL.

In addition to these changes that considerably expand and strengthen existing regulations, the legislation:

  • Provides for punitive damages and attorneys' fees to prevailing plaintiffs in all employment discrimination cases, not just those based on sex discrimination. This change takes effect 60 days after the legislation is signed into law.
  • Expands the statute of limitations period for filing sexual harassment claims under NYSHRL with the New York State Division of Human Rights (NYSDHR) from one year to three years, which aligns with the statute of limitations for filing a sexual harassment claim in court or with the New York City Commission on Human Rights under the NYCHRL. This change takes effect one year after the legislation is signed into law.
  • Expands the power of the New York State Attorney General to prosecute cases of discrimination based on all protected classes. Previously, the Attorney General was only permitted to prosecute discrimination claims based on race, creed, color, or national origin.This change takes effect immediately after the legislation is signed into law.
  • Requires employers to provide employees with a notice containing the employer's sexual harassment prevention policy and information presented at the employer's annual sexual harassment training in both English and the employee's identified primary language. This change takes effect immediately after the legislation is signed into law.

It is critical for employers to examine their policies and practices in light of these new developments. Please contact any of the authors or one of the following attorneys in the DLA Piper Employment Group for assistance or with any questions on these important issues:

Brian S. Kaplan
Joseph A. Piesco, Jr
Daniel Turinsky
Evan D. Parness
Garrett Kennedy

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