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NY Broadens Workplace Sexual Harassment and Discrimination Protections

Governor Cuomo signed landmark legislation on August 12, 2019 expanding New York State’s anti-discrimination and anti-harassment laws. Employers should be aware of the new legal requirements of these laws and their effective dates.

Effective Immediately

New York employers must now provide their employees with the employer’s sexual harassment prevention policy and information presented during the employers’ annual anti-harassment training at both (1) the time of hire and (2) the annual anti-harassment training. Employers are now required to provide this information in English and in the employee’s primary language, provided that the state has published a model in that language.

Effective October 11, 2019

  1. Elimination of the “severe or persuasive standard” for hostile work environment claims in favor of a lower standard more aligned with the New York City Human Rights Law (“NYCHRL”) standard. Individuals will now only need to demonstrate that they were subjected to “inferior terms, conditions or privileges of employment because of the individual’s membership” in a NYSHRL protected category. The amendment to the NYSHRL also provides that employers can assert an affirmative defense that “the harassing conduct does not rise above the level of which a reasonable victim of discrimination with the same protected characteristics would consider petty slights or trivial inconveniences.”
  2. Elimination of the Faragher/Ellerth defense which generally provided employers with an affirmative defense if the employer exercised reasonable care to prevent/correct discriminatory behavior, and the employee failed to follow the employer’s internal complaint procedure. Note that while an earlier amendment to the NYSHRL requires employers to have anti-sexual harassment policies, complying with that law and having the requisite policies does not shield the employer from potential liability.
  3. Expansion of damages and attorneys’ fees provides that employees may be entitled to an award of punitive damages and an award of reasonable attorneys’ fees.
  4. Expansion of persons who can bring a discrimination, harassment, or retaliation claim under NYSHRL to include non-employees providing services to a business such as contractors, vendors, and consultants.
  5. Expanded prohibition of non-disclosure provisions in settlement agreements unless the confidentiality provision is the claimant’s preference and the claimant is provided with 21 days to consider the provision prior to execution and then has seven days after execution of any such agreement to revoke it.
  6. Expanded prohibitions against mandatory pre-dispute compulsory arbitration of harassment claims so as to include all claims of harassment, discrimination, and retaliation. Note that this provision may be challenged as preempted by the Federal Arbitration Act (“FAA”) as mandatory pre-dispute compulsory arbitration of sexual harassment claims held to be lawful under the FAA. Latif v. Morgan Stanley & Co. LLC, 2019 WL 2610985 (S.D.N.Y. June 26, 2019).
  7. Potential expansion of individual liability due to the legislature revising the NYSHRL definition of “private employer” to include “any person”. This inclusion may result in direct employer liability under the NYSHRL in addition to already existing aider and abettor liability.

Effective January 1, 2020

Confidentiality provisions in employment agreements must include express carve outs for communications with law enforcement, the Equal Employment Opportunity Commission (“EEOC”), the New York State Division of Human Rights, a local commission on human rights, and attorneys retained by the employee or potential employee.

Effective February 8, 2020

The definition of an employer under the NYSHRL is expanded from four or more employees to include all private employers, regardless of size. This will directly impact businesses with less than four employees who previously were not covered by the NYSHRL.

Effective August 12, 2020

Expanded statute of limitations for filing sexual harassment claims with the New York Division of Human Rights from one year to three years.

Employer Take Away

Employers should review their employment agreements, settlement agreements, employment arbitration agreements, and anti-discrimination policies to ensure they are compliant with these new laws. Employers are also reminded that the mandatory annual sexual harassment training must be completed by October 9, 2019.

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Employment Notes, a newsletter produced by Tannenbaum Helpern Syracuse & Hirschtritt LLP’s Employment Law practice, provides insights on recent employment caselaw, legislation and other legal developments impacting employer policies, human resource strategies and related best practices. To subscribe to the newsletter, email marketing@thsh.com.

09.09.2019  |  PUBLICATION: Employment Notes  |  TOPICS: Employment  |  INDUSTRIES: Staffing

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