Sweeping Changes to the New York State Human Rights Law – Advantage : Employees

The New York State Legislature made sweeping changes to New York State’s anti-discrimination and anti-harassment laws, generally lowering the burdens for employees to file claims against their employers. Below are some of the highlights of the changes, which will go into effect on various dates after Governor Cuomo signs the bill:

1. All New York State Employers Are Covered
Previously, the New York State York State Human Rights Law (“NYSHRL”) only generally covered employers with four or more employees. This limitation is being eliminated so that all employers are now covered, regardless of how many employees they have.

2. Attorneys’ Fees Are Available in All Discrimination Cases
Immediately upon enactment, attorneys’ fees are going to be awarded to a prevailing party in any discrimination case covered by the NYSHRL. Previously, attorneys’ fee awards were discretionary and only applied to gender-based discrimination claims (along with housing discrimination).

3. Punitive Damages Are Available
Going in line with the City’s law, the NYSHRL will now allow punitive damages as a remedy in discrimination, harassment and retaliation lawsuits. This will apply to cases filed 60 days after the bill is signed into law.

4. No More “Severe or Pervasive” Standard
Previously, for employees to prevail on a sexual harassment claim, they were required to prove that the conduct to which they were subjected was severe or pervasive. Now, harassment of any kind can be demonstrated without proving it was severe or pervasive, although “petty slights and trivial inconveniences” will still not be actionable.

5. Faragher/Ellerth Defense is Eliminated
This defense allowed businesses to possibly dismiss claims for discrimination or harassment if they failed to follow internal complaint procedures in places by the company. Now, “[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.”

6. Similar-Situated Comparators No Longer Required
As another lowered threshold for employees, those claiming discrimination will no longer be required to show that they were treated less favorably than a comparator (being someone outside the employee’s protected class).

7. Protections for Non-Employees and Domestic Workers Expanded
Last year, the NYSHRL (and City law) was expanded to allow non-employees to file sexual harassment claims against employers. Now, the law is being expanded further to protect non-employees form any form of discrimination, harassment or retaliation, stating: “[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.”

8. No More Non-Disclosure Provisions in Discrimination Settlements
Employers are now prohibited from including non-disclosure provisions 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 the complainant is the one requesting the non-disclosure provision, it must be in plain English in the complainant’s primary language. The complainant will then have 21 days to consider the non-disclosure provision before signing and 7 days to revoke his/her signature.

9. Carve-Outs Required in Employment Agreements with Non-Disclosure Provisions
Commencing on January 1, 2020, if there is a non-disclosure provision in an employment agreement, such an agreement must have an express carve out stating that the 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.”

10. No More Mandatory Arbitration Clauses
Just as with the passage of barring mandatory arbitration of sexual harassment claims last year, the amendments now expand the prohibition to all discrimination or retaliation claims.

11. Sexual Harassment Requirements Expanded
Employers with employees in New York will now be required to provide notice to such employees, 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.”

12. Statute of Limitations Expanded to Three Years for Sexual Harassment Claims
While there is generally a one-year limitations period to file a gender discrimination claim with an administrative agency, the statute of limitations is now expanded to three years for filing a sexual harassment whether in court or with an administrative agency.

13. Liberal Construction of the NYSHRL
As with the City law, the NYSHRL is now going to be construed liberally and exceptions to the law construed narrowly in order to “maximize deterrence of discriminatory conduct.”

Employers throughout New York should be prepared for these changes and should revise their policies accordingly. For further information, please contact the Law Offices of Yale Pollack, P.C. at (516) 634-6340 or ypollack@yalepollacklaw.com.

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