New York Lowers Bar for Plaintiffs to Prove Harassment

On August 12, 2019, New York Governor Andrew Cuomo signed into law a sweeping reform of sexual harassment law that lowers the bar for plaintiffs to prove workplace harassment. The law builds upon the New York sexual harassment laws that were passed in 2018 following the Time’s Up and #MeToo movements.

This new legislation amends the New York State Human Rights Law and applies not only to claims for sexual harassment, but also to claims of all types of workplace harassment based upon any protected category, including, but not limited to, race, religion, age, national origin, and sexual orientation.

The new law changes several significant aspects of the law governing workplace harassment in New York and is complex as different aspects of the law become effective at different times.

Requires Distribution Of A Written Notice To Employees – Effective Immediately Upon Enactment

The law requires employers to provide employees with a written notice “at the time of hiring and during every annual sexual harassment prevention training” that contains the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.” The notice must be provided in English and in each employee’s primary language.

Attorney’s Fee Awards Mandatory – Effective Immediately Upon Enactment

The law makes attorneys’ fees mandatory for prevailing parties.

Extends Protections To Non-Employees – Effective 60 Days After Enactment

The law also extends the protections of the New York State Human Rights Law to non-employees, including independent contractors, consultants, and vendors. Employers can now be liable to non-employees where they knew or should have known that the non-employee was subjected to an unlawful discriminatory practice in the workplace and the employer failed to take immediate and appropriate corrective action.

Eliminates The “Severe Or Pervasive” Standard – Effective 60 Days After Enactment

The law eliminates New York’s “severe or pervasive” standard to prove workplace harassment, effectively making it easier for employees to prove harassment allegations in court. Under the law, harassment based on any protected characteristic is unlawful where such conduct “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more” protected categories “regardless of whether such harassment would be considered severe or pervasive.” The law tracks the text of the New York City Human Rights Law, which also features this much lower standard.

Eliminates The Faragher-Ellerth Defense – Effective 60 Days After Enactment

The legislation also eliminates the Faragher-Ellerth defense, an affirmative defense employers previously relied upon when a plaintiff failed to file an internal complaint and the alleged harassment did not result in tangible employment action, such as termination. Under this defense, employers argued that they had “exercised reasonable care” to prevent and correct sexual harassment and that the plaintiff had “unreasonably failed to take advantage of any preventative or corrective opportunities” they had provided. Under this new law, a plaintiff’s failure to complain to his/her employer of harassment “shall not be determinative of whether such employer . . . shall be liable.” The law instead provides employers with a defense where the alleged harassment comprises only “petty slights or trivial inconveniences.”

Prohibits Mandatory Pre-Dispute Arbitration – Effective 60 Days After Enactment

In addition, the law prohibits employers from requiring employee to sign arbitration agreements with respect to discrimination or harassment claims.

Punitive Damages Are An Available Remedy – Effective 60 Days After Enactment

The law provides for punitive damages to prevailing plaintiffs.

The New York State Human Rights Law Applies To All Employers – Effective 180 Days After Enactment

The legislation expands the definition of “employer” to encompass all private employers, regardless of size.

Prohibits Nondisclosure Agreements In Settlements Of Harassment Or Discrimination Cases – Applies To Contracts Entered Into After January 1, 2020

The law also prohibits employers from requiring employees to sign nondisclosure agreements as a condition to the settlement of a discrimination suit. However, the law does not prohibit employers from including an NDA in a settlement agreement that prohibits disclosure of the fact of the agreement or the settlement amount.

Extends The Statute Of Limitations – Effective One Year After Enactment

The law extends the statute of limitations for complaints of sexual harassment filed with the State Division of Human Rights to three years. Claims for all other forms of discrimination and harassment are still subject to a one-year statute of limitations when filed with the State Division of Human Rights. The law does not affect the statute of limitations for employees to file state law sexual harassment claims in court, which is also three years.

These amendments to New York employment law are a game-changer, the significance of which cannot be overstated. Please contact your CSG attorney to discuss how to comply with these recent developments in the law and what they mean for your business.

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