On Monday, August 12, 2019, New York Governor Andrew Cuomo signed off on a major expansion of the state’s workplace harassment and anti-discrimination law. Although the measures were passed by the State Legislature against the backdrop of workplace sexual harassment reform, the amendments cover all forms of harassment based on protected characteristics.

This summary identifies the amended law’s key changes and its effective dates.

Lower Threshold for Establishing Harassment

The amended law does away with New York’s “severe or pervasive” standard for adjudicating all types of harassment claims, effectively lowering the burden that complaining employees have to prove in such cases.

New York state’s primary workplace harassment and discrimination law, the Human Rights Law, prohibits workplace discrimination and harassment based on individuals’ race, religion, gender, age, disability, and a host of other characteristics. Federal laws, such as Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), also prohibit harassment and discrimination based on protected characteristics.

Historically, both the Human Rights Law and federal workplace discrimination laws prohibited “severe and/or pervasive” harassment. Courts determined if harassment was “severe” by gauging how egregious the harassment was, and determined if it was “pervasive” by reviewing how frequently the harassment occurred. Certain forms of harassment could be ruled “severe and/or pervasive” even if they occurred just once, such as sexual assault or racial epithets.

Under the newly amended Human Rights Law, however, harassment based on protected characteristics will be unlawful “regardless of whether such harassment would be considered severe or pervasive.” The amended law also redefines harassment as any practice that “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership” in a protected category.

The amended law does provide one key defense for employers. Employers may defend against harassment claims by establishing that the alleged harassment was merely a “petty slight” or a “trivial inconvenience.”

The change in the law brings New York State’s Human Rights Law in alignment with New York City’s Human Rights Law, which did away with the “severe or pervasive” standard in 2005. At the same time, the change signals a departure from New York law’s similarity with Federal workplace law.

Ultimately, the revised standard lessens the burden of proof for employees complaining of harassment. The new standard goes into effect for alleged incidents of harassment occurring on or after October 11, 2019.

Employees Do Not Need to Complain Internally Before Bringing Claims

The amended law functionally eliminates the Farragher-Ellerth defense in harassment claims brought under the Human Rights Law. Farragher-Ellerth, named after the two U.S. Supreme Court decisions that generated it, established that employers could defend against harassment claims by showing that a complaining employee failed to take advantage of the employer’s internal reporting mechanisms. This defense has been vital for employers with robust, well-maintained anti-harassment policies and complaint systems.

The amended law significantly weakens this defense. Under the new law, the fact that a complaining employee “did not make a complaint about the harassment to” their employer will not be “determinative of whether” the employer can be held liable.

The change takes effect for alleged incidents of harassment occurring on or after October 11, 2019.

Employees Do Not Need to Compare to Similarly-Situated Employees

 Harassment and/or discrimination claims often allege that the complaining employee was treated less favorably than a co-worker or a comparator employee. The amended law expressly removes that as a requirement; complaining employees will not need to “demonstrate the existence of an individual to whom the employee’s treatment must be compared.”

As with the new harassment standards above, the change takes effect for alleged incidents of harassment occurring on or after October 11, 2019.

Small Employers Now Covered Under Human Rights Law

The Human Rights Law previously covered all employers with four or more employees. The amendment expands the Human Rights Law’s coverage to “all” private employers in the state.

The expanded coverage of the law will go into effect on February 8, 2020.

Nondisclosure Agreements and Confidentiality Provisions Limited

Last year, New York state limited the use of nondisclosure and confidentiality agreements used in settlement of sexual harassment claims. The newly amended law now expands that limitation to all settlements involving claims of discrimination and/or harassment based on any protected characteristic, not just sexual harassment.

The new limitation prevents employers from insisting on confidentiality provisions in settlements, unless confidentiality “is the complainant’s preference.” If it is, the complainant must have 21 days to consider the employer’s confidentiality provision, and will have 7 days after signing it to revoke their acceptance.

The change goes into effect on October 11, 2019.

Prohibition on Mandatory Arbitration Clauses

Similar to the limitation on nondisclosure and confidentiality agreements, New York state last year prohibited mandatory arbitration of sexual harassment claims. The amended law expands that prohibition to all claims of harassment or discrimination.

The state’s prohibition on mandatory arbitration for sexual harassment claims, however, has already been the subject of litigation as it is conflict with the Federal Arbitration Act. One court has already invalidated the state’s prohibition on arbitration clauses on those grounds.

Regardless, the expanded prohibition on arbitration clauses takes effect on October 11, 2019.

Contractors and Other Individuals Protected Under Expanded Law

The expanded law protects “non-employees” in employers’ workplaces. For example, contractors, vendors, consultants, and similar individuals “providing services” to the employer may claim discrimination against the employer. Like the limitation on nondisclosure agreements and prohibition on arbitration clauses, this change builds on the state’s 2018 amendment relating specifically to sexual harassment claims.

The change takes effect for alleged instances of harassment or discrimination occurring on or after October 11, 2019.

Greater Statute of Limitations for Sexual Harassment Claims

The amendment changes the statute of limitations for sexual harassment claims filed with the State Division of Human Rights to three years, an increase from the current one-year limitation. Other types of harassment claims, however, are still subject to a one-year statute of limitations.

The new three-year statute of limitations goes into effect next year, on August 12, 2020.

Complainants May be Entitled to Attorney’s Fees and Punitive Damages

Marking a departure from several other employment-related laws, the expanded Human Rights Law now states that the Division of Human Rights and the courts may, in their discretion, “award reasonable attorney’s fees” to the prevailing party in harassment claims. Prevailing employers will have to establish that the claim was “frivolous” in order to receive an award of attorney’s fees.

Additionally, employees complaining of discrimination will be able to recover “punitive” damages, on top of compensatory damages.

The change takes effect for alleged instances of harassment occurring on or after October 11, 2019.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.