New York: Get Ready for Expansive State Discrimination Law Reforms

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The New York legislature recently passed an omnibus bill that will amend a number of existing laws, greatly expanding the state’s expansive workplace harassment and discrimination protections.  In addition, the amendments will cover all New York employers of any size. Governor Cuomo is expected to sign the bill shortly. Key changes are noted as follows.

Topic Details Effective Date
Expansion of the New York State Human Rights Law (NYSHRL) Currently, the NYSHRL only applies to employers of four or more.  The amendment expands the NYSHRL to employers of all sizes. 180 days after the bill is enacted

 

Standards for Harassment Claims Previously, harassment claims had to prove that the inappropriate conduct was “severe or pervasive.”  The amended bill eliminates this standard for harassment or retaliation claims based on any protected category. 60 days after the bill is enacted
Removal of Faragher-Ellerth Defense in Harassment Claims Employers can defend against federal harassment claims if employees failed to report alleged misconduct when the employer had an appropriate reporting mechanism.  Now, failure to make a complaint regarding the alleged harassment will not excuse employer liability under state laws. 60 days after the bill is enacted
Non-Employee Harassment Protections Expanded Employers may now be liable for harassment directed towards non-employees (e.g., contractors, subcontractors, vendors, consultants, or any other person who provides services to the workplace) if the employer or its agents “knew or should have known” that the harassment occurred and failed to take any corrective action. 60 days after the bill is enacted
Attorneys’ Fees and Punitive Damages for Successful Harassment Claims The amendments will now allow awards of attorneys’ fees and punitive damages to claimants who prevail on a harassment claim. 60 days after the bill is enacted
Expanded Sexual Harassment Training & Policy Requirements Sexual harassment training will be required both at time of hire and annually.  Employees must be provided a written notice of the employer’s sexual harassment policy as well as information presented during the harassment prevention training.  The written notices must be provided in English and the primary language of the employee.

 

The New York State Department of Labor and New York State Division of Human Rights (NYSDHR) currently provide a model sexual harassment policy and training; with the amendments, they must re-evaluate and update the models every four years beginning in 2022.

Immediate upon enactment
Statute of Limitations Extended Individuals will now have three years to file a NYSHRL claim with the NYSDHR, as opposed to one year previously. One year after the bill is enacted
Prohibition of Confidential Settlements, Mandatory Arbitration Agreements In 2018, state legislation prohibited certain clauses in agreements that suppress knowledge of sexual harassment claims, such as contracts that mandate arbitration of sexual harassment claims, or settlement agreements for sexual harassment claims that include a nondisclosure clause.

 

The amendments now prohibit such language for all types of discrimination claims; additional requirements apply to include confidentiality language.

60 days after the bill is enacted
Future Confidentiality Provisions Voided In addition to the above, the amendments also void any agreements between an employer and employee/potential employee that prevent disclosure of factual information related to future discrimination claims, unless the agreement carves out an exception for law enforcement, the EEOC, the NYSDHR, a local human rights agency, or attorney retained by the employee. All agreements entered in or after January 1, 2020

Action Items

  1. Conduct sexual harassment training in compliance with the mandated timeline, and prepare written materials for distribution.
  2. Train managing staff on recognizing and responding to incidents of harassment and discrimination.
  3. Have legal counsel review existing confidentiality, employment, or arbitration agreements for compliance with the new requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2019 ManagEase

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