As part of the proposed 2020 New York state budget, Governor Andrew Cuomo has suggested broadening the definition of harassment and easing the standard of proof in harassment cases under the New York State Human Rights Law. These changes would more closely align with the employee-friendly standard imposed under the New York City Human Rights Law.

Under the proposed budget (S1506/A2006), the New York State Human Rights Law (NYSHRL) would strengthen employee protections by doing away with the familiar “severe or pervasive” standard applicable under Title VII of the Civil Rights Act of 1964. Non-actionable incidents would be limited to those that might be considered petty slights or trivial inconveniences.

If the amendment to the law passes, the law would instead be revised to state:

“Harassment includes the types of actions that have been found by the courts to create a hostile environment or a tangible job detriment. Such actions are an unlawful discriminatory practice when they result in a person or persons being treated not as well as others because of a protected characteristic. Harassment is not limited only to those actions that are severe or pervasive. Harassment does not include what a reasonable person with the same protected characteristic would consider petty slights or trivial inconveniences.”

A separate bill (S3817) would:

• Amend the State Human Rights Law to prohibit discriminatory harassment based on all protected categories

• Eliminate the “severe or pervasive” standard from discriminatory and retaliatory harassment cases

• Eliminate part of the Faragher/Ellerth defense, which currently enables an employer to avoid liability when a supervisor sexually harasses an employee but no “tangible employment action” results from such harassment.

According to the bill’s sponsor memo, the bill specifically aims to eliminate the impression by workers within New York state that the law, as it is currently written, exists to protect institutions and employers, rather than millions of vulnerable employees.

We will continue to monitor these bills, as changes to the standards for assessing potential liability for discrimination and harassment under the New York State Human Rights Law would undoubtedly affect employers across New York state.

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.