On Wednesday, June 19, 2019 the New York State Legislature passed a sweeping set of reforms to the state’s laws on sexual harassment, that is currently awaiting the Governor’s signature. These reforms offer new protections for victims of sexual harassment in the workplace. Sponsored by State Senator Alessandra Biaggi, D-Westchester, and Assemblywoman Aravella Simotas, D-Queens, Senate bill S.6577 has support from Governor Cuomo who plans to sign as soon as possible.
This legislation passed as a result of more than a year of lobbying by women across the state of New York. The Legislature held hearings this year on sexual harassment in the workplace for the first time since 1992 (see our Firm’s testimony submitted here). This package builds on the laws that Governor Cuomo signed last year, inspired by the #MeToo movement, that banned most nondisclosure agreements and mandatory arbitrations for harassment complaints and required government employees responsible for harassment to refund any taxpayer-financed payouts.
Additionally, this legislation responds to concerns that the state was focusing solely on sexual harassment reform, rather than the full spectrum of discrimination against protected classes. This legislation provides additional protections to victims of discrimination and retaliation for all protected classes and characteristics under the New York State Human Rights Law.
The following amendments go into effect immediately upon enactment:
- Attorney’s Fees Shall be Awarded. Changes the standard of awarding attorney fees from discretionary to providing that a prevailing party “shall” be awarded attorneys’ fees. If a prevailing employer seeks attorneys’ fees, it must first show that the action brought by the plaintiff was frivolous.
- The NYSHRL is to be Interpreted Broadly. The provisions of the law shall be construed liberally and exceptions to the law narrowly to maximize deterrence of discriminatory conduct, even if this departs from comparable federal law.
- Employers Must Provide Anti-Harassment Policies in Multiple Languages. Employers must provide their sexual harassment prevention policy and the information presented at their sexual harassment prevention training programs in both English and the primary language identified by employees. Employers are not required to provide their policy in another language if the state has not published a template in that language.
The following reforms will take effect 60 days after enactment for claims filed after that date:
- “Severe or Pervasive” is no Longer the Standard. The current standard requires conduct to be “severe or pervasive,” but going forward, harassment on the basis of any protected characteristic will be unlawful, regardless of whether it is severe or pervasive, as long as it rises above the level of petty slights or trivial inconveniences.
- The Faragher/Ellerth Defense is Removed. Employers can no longer use the fact that a plaintiff didn’t report the harassment to Human Resources as an absolute defense. This is already the case for sexual harassment claims brought in New York City under the New York City Human Rights Law.
- The Law Protects Domestic Workers. The NYSHRL protects domestic workers on the same grounds as other types of employees.
- Employees Do Not Need to Compare their Treatment. Employees do not need to compare their treatment with the treatment of another employee in making a discrimination claim.
- Expanded Protection for Contractors. Employers can be found liable for all types of workplace discrimination and retaliation to contractors, who are currently only protected from sexual harassment.
- Punitive Damages are Available. Punitive damages are available as a remedy in all discrimination, harassment and retaliation lawsuits under state law.
- Restricts NDAs for All Discriminatory Conduct. Expands last year’s requirement that non-disclosure agreements can only be entered into at the complainant’s preference when settling any discrimination claim under the New York State Human Rights Law, not just claims of sexual harassment.
- Prohibits Mandatory Arbitration Clauses. Expands last year’s legislation prohibiting mandatory arbitration of sexual harassment claims to all discrimination or retaliation claims.
The following reform will take effect 180 days after enactment for claims filed after that date:
- The Definition of Employer is Expanded. The NYSHRL covers employers of all sizes, as opposed to the current standard where only employers with four or more employees are covered in all cases except for instances of sexual harassment.
The following reforms go into effect one year after enactment for claims filed after that date:
- · Expands the Statute of Limitations for Sexual Harassment Claims. Employees filing sexual harassment complaints to the New York State Division of Human Rights will now have three years instead of the current one-year statute of limitations. Discrimination claims other than sexual harassment are still subject to the one-year statute of limitations when filed in administrative agencies.
- · Required Carve-Out in NDAs. Starting July 1, 2020, NDAs that are part of an employment contract must include an explicit carve-out providing that the employee or future employee is not prohibited from speaking with law enforcement, the EEOC, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.
Next Steps for Employers
Employers should be aware of these changes as it will be easier for employees to bring discrimination claims under the New York State Human Rights law. Employers should identify the primary languages of their employees in order to provide sexual harassment prevention materials in the appropriate languages. Employers must also be aware of the expanded protections for domestic and contract workers against all discriminatory conduct. Additionally, employers must update contracts to remove mandatory arbitration clauses in violation of this legislation and be aware that contracts must contain the required carve-out by July 1, 2020.
Written by Summer Law Clerk Emily Entwistle.
