Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As its session draws to a close, the New York State Legislature substantially revised the state’s anti-discrimination and anti-harassment laws this week, and Governor Andrew Cuomo has promised to sign the new measures imminently. The new legislation builds on the sexual harassment reforms that the state implemented over the course of 2018.
This article provides the key takeaways for employers with any personnel based in New York. Note that the effective dates of these provisions vary, as does the degree to which they apply to existing claims versus those filed after enactment (the date that the governor signs the bill).
- Employers of all Sizes are Covered. As amended, the New York State Human Rights Law will cover employers of all sizes. Previously, except with respect to sexual harassment, only employers with four or more employees in New York were covered. This change goes into effect 180 days after enactment for claims filed after that date. In addition, the law will now protect domestic workers on the same grounds as other types of employees, beginning 60 days after enactment for claims filed after that date.
- Complainants Will Have a Lower Burden of Proof. Proponents of the new legislation have focused heavily on lowering the burden of proof for state law discrimination, harassment and retaliation claims, as follows:
- The "Severe or Pervasive" Standard is No More. Going forward, harassment on the basis of any protected characteristic will be unlawful “regardless of whether such harassment would be considered severe or pervasive.” Previously, New York State law mirrored federal law and required an employee to show that alleged harassment was severe or pervasive in order to state an actionable claim against an employer. New York State law now resembles New York City law, which eliminated the “severe and pervasive” standard in 2005, in requiring only that an employee show that alleged harassment or retaliation rises above the level of “petty slights and trivial inconveniences.”
- The Faragher/Ellerth Defense Becomes Unavailable. The new measure also removes a defense commonly used by employers, i.e., that the employee never utilized the employer’s internal complaint procedure. This is known as the Faragher/Ellerth defense, after a pair of Supreme Court decisions that established its availability in federal Title VII cases. Under State 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.”
- Employees Need Not Point to Similarly-Situated Comparators. Lastly, employees claiming discrimination will no longer be required to show that they were treated less favorably than a comparator (i.e., an employee outside the relevant protected category).
The above changes will take effect 60 days after enactment for claims filed on or after that date.
- New York Employers May be Held Liable for Discrimination of any Kind Against a Contractor. New York State expanded its sexual harassment protections last year to include contractors. The law is again expanding, this time to protect contractors from other types of workplace discrimination and retaliation: “[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.” This change goes into effect 60 days after enactment for claims filed on or after that date.
- Punitive Damages Will be Available. Punitive damages will become available as a remedy in discrimination, harassment and retaliation lawsuits under state law. This change goes into effect 60 days after enactment for claims filed on or after that date.
- Attorney Fees “Shall” be Awarded to the Prevailing Party. New York Human Rights Law now provides that a prevailing party (whether before a court or the Division of Human Rights) “shall” be awarded attorneys’ fees, rather than the award being discretionary. If a prevailing employer seeks attorneys’ fees, it must first show that the action brought by the plaintiff was frivolous (i.e., that it was filed or continued in bad faith as defined in the statute). This change goes into effect immediately upon enactment.
- The Laws Shall be Construed Liberally to Maximize Deterrence. Going forward, the state law is to be construed liberally and exceptions to the law construed narrowly in order to “maximize deterrence of discriminatory conduct,” even where this approach may diverge from comparable federal law. This change goes into effect immediately for claims filed after enactment.
- Nondisclosure Agreements (NDAs) Restricted for All Discrimination Cases. New York sharply limited NDAs in sexual harassment cases last year by requiring protective measures to ensure that confidentiality was the complainant’s preference. Going forward, the law will apply to all types of discrimination, harassment or retaliation claims, prohibiting employers from including 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.” If confidentiality is the complainant’s preference, then an NDA regarding the facts and circumstances of the claim is permissible, but must be written in “plain English, and, if applicable, the primary language of the complainant.” The complainant then must have a full, non-waivable 21 days to consider the NDA clause before signing the document and a 7-day waiting period during which the employee may revoke agreement to the NDA after they sign. This change goes into effect 60 days after enactment for all claims settled on or after that date.
- Employment Contract NDAs Must Include a Carve-Out. Beginning on January 1, 2020, NDAs that are part of an employment contract and that limit the employee from disclosing information related to a future claim of discrimination must include an explicit carve-out providing that the employee or future employee is not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”
- Mandatory Arbitration Clauses Prohibited. Last year, New York enacted legislation prohibiting mandatory arbitration of sexual harassment claims. This prohibition has now been expanded to any discrimination or retaliation claim (not just sexual harassment). This change goes into effect 60 days after enactment, although it is still expected to be pre-empted by federal law in most cases.
- Mandatory Distribution of a Written Anti-Harassment Policy. The state will require employers to provide New York-based employees with a notice, both at the time of hire and during annual sexual harassment prevention training, that contains both the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.” Employers must provide this information both “in English and in the language identified by each employee as the primary language of such employee.” 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 change goes into effect immediately on enactment.
- The Statute of Limitations for Sexual Harassment Claim is Now Three Years in All Cases. Employees will have three years to bring an administrative claim of sexual harassment under state law, whether filing in an administrative agency or in court. Previously, the applicable statute of limitations was one year in administrative agencies; discrimination claims other than sexual harassment are still subject to a one-year statute of limitations when filed in administrative agencies. This change goes into effect one year after enactment for claims filed after that date.
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.