Employees and employers should be aware that the 2019 New York State Legislature has made it easier for employees to make workplace harassment claims. Governor Andrew M. Cuomo is expected to sign the legislation into law; once he does, most of the changes will go into effect 60 days later.
Notably, the new workplace harassment laws apply to all employers in New York State, no matter how many people they employ. The exemption for employers with fewer than four persons was struck from the existing definition of “employer” included in the text of the bill.
The remainder of the new legislation consists of several amendments to existing provisions of state laws, including the Human Rights Law, General Obligations Law, Civil Practice Law and Rules and the Labor Law.
Standard for claims. The new law lowers the legal standard for sexual harassment claims Notably, the legislation removes the requirement that sexual harassment claims must be “severe or pervasive.” New York City removed its “severe and pervasive” standard back in 2005. Employees can prevail if they show that they were subjected to “inferior terms, conditions or privileges of employment” because of their sex.”
Use of internal complaint procedure defense. The legislation removes a commonly used affirmative defense by employers in which they can claim an employee did not utilize an internal complaint procedure. The well-known Faragher-Ellerth Defense, named after two (2) U.S. Supreme Court cases, allowed employers to avoid liability for sex-discrimination claims if the employee failed to utilize the employer’s internal complaint procedures. This defense will no longer be allowed.
Punitive damages. Plaintiffs who prevail in discrimination, harassment or retaliation claims may be eligible for punitive damages. On the other end, a prevailing attorney can be awarded attorneys’ fees if the employer proves the claim is frivolous or filed in bad faith.
Timeline. Employees alleging claims of sexual harassment will now have three years to bring a claim to an administrative agency or in court under the new legislation. The statute of limitations had been one year for administrative agencies. Discrimination allegations other than sexual harassment claims will remain subject to a one-year statute of limitations that are filed in administrative agencies.
“Non-employees.” Under the new legislation, employers could be liable for the harassment of “non-employees,” which could include contractors, subcontractors, consultants, vendors—anyone who provides services in the workplace. When an employer is aware of or should have been aware of alleged harassment and does not take appropriate corrective action, that employer will be liable for the harassment.
Sexual harassment training. In addition to compliance with New York State’s existing sexual harassment training requirements, the new legislation requires that anti-harassment training be provided in an employee’s primary language, as well as in English.
Nondisclosure agreements. The restrictions enacted in 2018 regarding confidentiality provisions in settlement agreements of sexual harassment claims would be expanded to include discrimination and retaliation claims under the new legislation. The new legislation requires employees be provided 21 days to consider whether to accept a confidentiality provision and seven days to revoke acceptance. Significantly, the confidentiality provision can only be included if it is the complainant’s preference to include the provision.
Mandatory arbitration. The legislation expands the current prohibition of mandatory arbitration clauses regarding sexual harassment settlements to apply to all discrimination claims, effective 60 days after its enactment.
State policies. Beginning in 2022, and every four years thereafter, the state will be required to evaluate and update as necessary its model harassment policy and model training program.
Employees and employers should contact an employment law attorney to learn more about how the new workplace sexual harassment legislation affects them.
Nicholas A. Devyatkin, Esq. is a labor and employment attorney in Tully Rinckey PLLC’s Manhattan office.
