Spearheaded by Time’s Up (an organization started by women in the entertainment industry in 2017 in response to highly publicized claims of abuse, misconduct and sexual harassment of women in that industry), the Legislation will make it easier for workers to file harassment and discrimination claims under State law, and more difficult for employers to successfully defend those claims. Employer liability for harassment, discrimination, and retaliation claims under the NYS Human Rights Law will increase. We summarize below these and other statutory changes, incorporated in the Legislation, that are collectively intended to prevent, address, and remedy harassment and discrimination.
Expanded Coverage of the NYS Human Rights Law
The Legislation expands the coverage of the NYS Human Rights Law in several ways. First, the Legislation amends the definition of “employer” under the New York State Human Rights Law, so that employers of all sizes are covered. (Previously, only those employers with four or more employees were covered ‒ except that, pursuant to amendments to the NYS Human Rights Law enacted on April 12, 2018, employers of all sizes were covered for purposes of the law’s prohibition on sexual harassment.) This provision will take effect 180 days after the Legislation is enacted.
Second, the Legislation also expands the pool of allegedly aggrieved individuals who are covered by the NYS Human Rights Law. Going forward, employers may be liable under the NYS Human Rights Law for harassment, discrimination or retaliation against domestic workers and against non-employees, including contractors, subcontractors, vendors, consultants, and other individuals providing services pursuant to a contract in the workplace. (Note that with regard to claims of sexual harassment only, this expanded coverage has been in effect since the NYS Human Rights Law was amended in April 2018.) This provision will take effect 60 days after the Legislation is enacted.
Third, under the Legislation, individuals will have three years, instead of one, to file sexual harassment complaints with the New York State Division of Human Rights. With regard to other types of claims, the one-year statute of limitations will still apply. This change will take effect one year after the Legislation is enacted.
Lower Burdens for Plaintiffs Pursuing Claims Under the NYS Human Rights Law
The Legislation lowers the legal threshold for claims of harassment, from the comparatively narrow federal standard that requires conduct to be “severe or pervasive” to be considered harassment, to a far broader standard that is more closely analogous to the expansive New York City Human Rights Law. Aggrieved individuals will need to demonstrate only that they were subjected to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more … protected categories.” Moreover, to prevail in harassment cases under the NYS Human Rights Law, individuals will no longer be required to demonstrate that they were treated less favorably than individuals outside their protected class. Employers may avoid liability by demonstrating that the alleged harassment did not rise above the level of what a reasonable victim of discrimination would consider petty slights or trivial inconveniences. This provision takes effect 60 days after the Legislation is enacted, and applies only to claims filed on or after that date.
In addition, in harassment cases that are filed under the NYS Human Rights Law on or after the 60th day following the enactment of the Legislation, the “Faragher/Ellerth” defense (named for the plaintiffs in a pair of U.S. Supreme Court decisions issued in 1998) will no longer apply. This means that employers will not be able to avoid liability for harassment under the NYS Human Rights Law simply because the employee did not complain directly to the employer before initiating legal proceedings; the employee’s failure to complain about harassment internally to the employer “shall not be determinative of whether such employer  shall be liable.”
Expanded Damages Available to Claimants under the NYS Human Rights Law
As amended by the Legislation, the NYS Human Rights Law will allow for awards of punitive damages to prevailing plaintiffs, and it will require awards of reasonable attorney’s fees to prevailing plaintiffs. Prevailing private employers may be entitled to recover attorney’s fees, but only if they can demonstrate that the lawsuit was frivolous. This provision takes effect 60 days after the Legislation is enacted, and applies to claims filed on or after that date.
Further Restrictions on Use of NDAs and Mandatory Arbitration Provisions
The Legislation expands the coverage of the 2018 amendment to New York State law that prohibits the inclusion of nondisclosure provisions in sex harassment settlement agreements, unless the complainant prefers to include such provisions. Going forward, that prohibition will apply to settlements of any discrimination, harassment or retaliation claims under State law. Thus, settlement agreements that “would prevent the disclosure of the underlying facts and circumstances to the claim or action” are prohibited, “unless the condition of confidentiality is the complainant’s preference.” Moreover, the complainant must be afforded twenty-one (21) days to consider the confidentiality provision prior to execution, and an additional seven (7) days after execution to revoke it. This change takes effect 60 days after the Legislation is enacted, for claims settled on or after that date.
Additionally, non-disclosure agreements entered into as part of employment contracts on or after January 1, 2020 must include an explicit carve-out that allows the employee or potential employee entering into the NDA to speak with “law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.” In the absence of such language, NDAs will be void and unenforceable to the extent they prevent disclosure of factual information related to any future claims of discrimination.
The Legislation also expands the prohibition on mandatory arbitration provisions that was enacted in 2018 with regard to sex harassment claims. Under the Legislation, the prohibition will extend to any claims of harassment, discrimination or retaliation, effective 60 days after the Legislation takes effect. Note, however, that the Federal Arbitration Act will likely pre-empt this provision in all but a very narrow range of cases.
Expanded Anti-Harassment Notice Obligations
Immediately upon enactment of the Legislation, employers with employees based in New York State will be required to provide those employees with a notice, at the time of hire and during annual mandatory anti-harassment training, including both the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.” The notice must be provided in English and in the employee’s primary language (as identified by the employee), as long as the State has published a model policy in that employee’s primary language.
What Should Employers Do Now?
The most effective measures employers can adopt in response to the Legislation are those designed to prevent unlawful harassment and to ensure that prompt and effective corrective action is taken if harassment occurs. Promoting and cultivating a work environment that is open, respectful, professional and harassment-free will be critically important, and this in turn requires a clear, comprehensive, and frequently communicated anti-harassment policy; anti-harassment training that is engaging and effective; and development of HR practices that enable the employer to identify and address potential harassment, discrimination, and retaliation issues at the earliest stage, before those issues translate to potential legal liability for the employer.
Employers with employees in New York State should take the following concrete steps to prepare for the Legislation’s enactment:
- Ensure that the employer’s anti-harassment policies, training and other prevention/correction efforts cover the personal characteristics protected by the NYS Human Rights Law, including age, race, sex, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status;
- Ensure that the employer’s anti-harassment policy, and the information presented at its mandatory annual anti-harassment training, is distributed to all employees at the time of hire and when training is conducted;
- Review all employment-related agreements to ensure that the required carve-out from non-disclosure/confidentiality provisions is included;
- Review settlement agreements to remove non-disclosure/confidentiality provisions where the agreements involve claims of harassment, discrimination, and/or retaliation under New York State law; and
- Review arbitration provisions in all employment-related agreements to ensure that they are governed by the Federal Arbitration Act, which pre-empts state law banning arbitration.
The Legislation specifically directs that the NYS Human Rights Law is to be construed liberally (like the NYC Human Rights Law), so as to “maximize deterrence of discriminatory conduct.” The amendments described above are emblematic of the expansive reading that is to be given of the NYS Human Rights Law going forward. In effect, the Legislation will make it easier for individuals to pursue legal action for alleged harassment, discrimination and retaliation under New York State law, and harder for employers to successfully defend against such claims. This is likely to mean that more cases will be filed, fewer cases will be dismissed prior to trial, and damages awards to successful plaintiffs will increase (because those awards will now include attorney’s fees and potentially also punitive damages).