On August 12, New York Governor Andrew Cuomo signed into law substantial and far-reaching amendments to the New York State Human Rights Law (NYSHRL), the state statute that prohibits discrimination and discriminatory harassment. The amendments amplify laws that New York state enacted in 2018 to combat sexual harassment. Here are important facts about the amendments that employers should be aware of.
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All Employers Now Covered
Effective immediately, the NYSHRL will require that courts and the New York State Division of Human Rights (DHR) construe the NYSHRL liberally and allow only narrow exceptions to “maximize deterrence of discriminatory conduct,” even when such an interpretation results in more expansive coverage than Title VII of the Civil Rights Act of 1964 or comparable federal law.
The NYSHRL will now cover all employers in the state. Previously, the discrimination provisions of the law covered only New York employers with four or more workers, while the sexual harassment provisions covered all employers. The amendment expanding the NYSHRL’s coverage to all employers will go into effect 180 days after the governor signed the bill.
The NYSHRL also will now protect domestic workers, with this expanded coverage commencing 60 days after the governor signed the bill.
Harassment Claims Will Be Easier to Prove
The following changes will make it easier for employees to satisfy the NYSHRL’s burden of proof for allegations of discrimination, harassment, and retaliation:
- New York state had adopted the federal requirement under Title VII that an employee claiming harassment must demonstrate the allegedly harassing behavior was severe or pervasive. New York City abandoned the “severe and pervasive” standard more than a decade ago when it began requiring only that employees demonstrate that the alleged harassment or retaliation rose above the level of “petty slights and trivial inconveniences.” The NYSHRL will now use the evidentiary standard set out in the New York City Human Rights Law (NYCHRL).
- The NYSHRL also required that employees alleging discrimination show they were treated less favorably than coworkers outside the same protected class. The NYSHRL no longer contains that comparator provision.
- The NYSHRL also provided that employers could use employees’ failure to follow their internal complaint process as a defense to harassment claims. The Faragher/Ellerth defense, named after two U.S. Supreme Court cases that established an affirmative defense to Title VII harassment claims, is no longer available under the NYSHRL. Now, the fact that an employee didn’t complain about harassment “shall not be determinative” of his employer’s liability under the NYSHRL.
These evidentiary revisions easing the burden of proof for employees will become effective 60 days after the governor signed the bill.
Expansion of Attorneys’ Fees, Punitive Damages Awards
The NYSHRL will now state that the DHR or a court “shall” award a prevailing party her attorneys’ fees. However, a prevailing employer will need to prove the employee’s lawsuit was frivolous to obtain attorneys’ fees. The new attorneys’ fees provision will go into effect immediately.
The NYSHRL also will provide for the award of punitive damages in addition to the back pay, front pay, and compensatory damages awards that are already available under the law. This provision will become effective 60 days after the governor signed the bill.
Coverage of Independent Contractors Expanded
The NYSHRL will now provide that “an employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”
In other words, to complement the protections against sexual harassment for independent contractors that went into effect in 2018, the NYSHRL will now inoculate independent contractors against all kinds of unlawful discrimination, harassment, and retaliation. This provision becomes effective 60 days after the bill’s enactment.
Longer Statute of Limitations for Sexual Harassment
Effective one year after the enactment of the amendments, the NYSHRL will have a three-year statute of limitations for administrative claims of sexual harassment filed with the DHR. The statute of limitations for discrimination claims other than sexual harassment filed with the DHR will remain one year. Employers should note that the NYSHRL’s statute of limitations for claims initially filed in court is already three years.
Stricter Limits on NDAs
In 2018, New York dramatically constrained employers’ use of nondisclosure agreements (NDAs) in sexual harassment cases. The NYSHRL will now prevent employers from including NDAs in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, . . . that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.” This provision will cover claims involving all forms of discrimination, harassment, and retaliation.
If confidentiality is the employee’s preference, the employer can include an NDA covering the facts and circumstances of the complaint, but it must be in “plain English, and, if applicable, the primary language of the [employee].”
The employer must give the employee at least 21 days to consider the NDA before executing the agreement, and there’s a seven-day waiting period after the employee signs the agreement during which she may revoke her consent to the NDA. This provision will go into effect 60 days after the bill’s enactment.
Effective January 1, 2020, the NYSHRL will provide that NDAs in employment contracts that limit employees from disclosing information about future discrimination claims must contain language expressly stating they are not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the [DHR], a local commission on human rights, or an attorney retained by the employee or potential employee.”
Mandatory Arbitration Barred
In 2018, New York prohibited the mandatory arbitration of sexual harassment claims. That provision will be expanded to prohibit mandatory arbitration of any discrimination, harassment, or retaliation claim under the NYSHRL.
However, the Federal Arbitration Act (FAA) will likely limit the effect of this provision because the FAA probably will preempt the state statute’s arbitration ban. Transportation industry employers should remember that the FAA doesn’t apply to that industry, so this defense won’t be available to them. The prohibition on forced arbitration becomes effective 60 days after the bill’s enactment.
New Notice Requirements
Effective immediately upon the governor’s signature of the bill, the NYSHRL will require employers, upon hiring new employees and during their annual sexual harassment prevention training, to provide a notice that contains their “sexual harassment prevention policy and the information presented at [their] sexual harassment prevention training program.” Employers must present this notice “in English and in the language identified by each employee as [their] primary language.”
The state will provide model policies in certain languages other than English. In the absence of a model policy in a particular foreign language, the state will not require employers to disseminate their policy in that language.
Bottom Line
Employers in New York must now comply with a much more robust NYSHRL that provides employees with greater protections and more significant remedies.
To combat sexual harassment claims in your company, be sure to implement sexual harassment training ASAP—it’s also the law in New York! Learn more about preventing sexual harassment in your company by attending the HR Comply hot topic power talk, “Sexual Harassment Prevention: Are Today’s Training Methods Making a Difference?,” on November 14-15, 2019 in Nashville, Tennessee. Click here to learn more, or to register today.
Charles H. Kaplan is an employment law attorney with Sills Cummis & Gross P.C—and editor of New York Employment Law Letter. He can be reached at ckaplan@sillscummis.com.