Late on June 19, New York lawmakers passed a bill that makes wide-sweeping changes to New York State discrimination and harassment law. Gov. Andrew Cuomo has indicated that he will sign the bill, but he has not done so at this point. The bill implements changes related to the construction, definitions, proofs, affirmative defenses, policies and remedies related to discrimination and harassment.
Construction, Definitions and Proofs
First, the bill amends the definition of “employer” in the New York State Human Rights Law (NYSHRL) to include all employers within the state, including state and political subdivisions.
Second, it extends the filing deadline for Division of Human Rights sexual harassment complaints from one year to three years.
Third, the bill makes clear that the NYSHRL should be interpreted on its own and construed “in order to maximize deterrence of discriminatory conduct,” regardless of how comparable federal law is construed. This amendment likely means that courts will interpret the NYSHRL more akin to the far more employee-friendly New York City Human Rights Law, rather than federal law as they currently do.
Perhaps the biggest impact employers will feel with this new law is that it removes the requirement that a plaintiff show that he or she suffered “severe or pervasive” treatment in order to prove a hostile work environment claim. Instead, the bill provides that harassment is unlawful when an individual is subjected to inferior terms, conditions or privileges of employment because of the individual’s membership in a protected class regardless of whether the alleged conduct was severe or pervasive. The bill does, however, provide an affirmative defense that no liability should attach if the employer can show that the harassing conduct did not rise above what a reasonable member of the same protected class who was a victim of discrimination would consider petty slights or trivial inconveniences. It is unclear how employers will measure or prove what a reasonable member of the same protected class would consider petty slights or trivial inconveniences.
And in a huge loss for employers, the bill takes a stab at Faragher-Ellerth by stating that the fact that an individual did not make a complaint about harassment to an employer is not determinative of whether an employer shall be liable. Presumably this means that employers are still free to make the Faragher-Ellerth argument (i.e., that they had policies for preventing and reporting harassment, and the employee failed to take advantage of such resources) in a lawsuit but that the court may or may not consider it. In short, employers have now lost a key affirmative defense in sexual harassment cases.
Expansion of Post-#MeToo Laws
The bill also expands protections that were recently enacted post #MeToo by expanding the restrictions on nondisclosure and arbitration agreements to all forms of discrimination, not just sexual harassment, and expanding protections for non-employees. The bill imposes liability on employers for any unlawful discrimination practices it permits against non-employees in the workplace. Previously, non-employees were protected only from sexual harassment.
Additionally, employers will be forced to once again provide new anti-harassment policies embodying this new definition of harassment. The policies must be provided in English and the primary language identified by each employee. The policy must be provided upon hire, and at each yearly anti-harassment training. The state will be releasing a new model policy and revising it on an as-needed basis.
NYSHRL Violations Now Bring Attorneys’ Fees
With this bill also comes attorneys’ fees for all NYSHRL claims against employers with regard to any unlawful discrimination practices. The bill also revokes a court’s discretion and instead dictates that such attorneys’ fees shall be awarded to any prevailing party. The requirement for employers to obtain attorneys’ fees upon prevailing in the case, however, remains that they must prove that the claim asserted was frivolous.
This is a vast departure from federal law and a huge blow to employers. Employers should be even more vigilant in training employees on what inappropriate behavior is, take complaints of any inappropriate behavior seriously, and immediately nip any bad behavior in the bud. Supervisors should take care to ensure there is not even an appearance of harassment.
If you need assistance in revising your sexual harassment policies or training your employees or have other questions about these new requirements, please contact our Labor and Employment Group.