New York Governor Andrew Cuomo signed into law today a bill which will dramatically alter the way discrimination and harassment claims are treated in New York.
One of the most significant changes arising from the new legislation is that the definition of "employer" under the New York State Human Rights Law (NYSHRL) has been revised to remove any reference to a minimum number of employees. The NYSHRL now covers all public and private employers in the state.
The law also removes the longstanding requirement that harassment be "severe or pervasive" before an employer can be held liable. Employers should expect that this change will result in a significant increase in claims. The new standard is far lower. An employer may raise an affirmative defense if the "harassing conduct" is considered, by a "reasonable victim" of the same protected class, to be "petty slights or trivial inconveniences." It remains to be seen what conduct will fall within this category. While this legislation arose out of concerns about sexual harassment, it will also apply to employees alleging harassment based on race, religion, or any other protected class.
The amendments further circumscribe the ability of an employer to rely on an employee's failure to report harassment internally since such a failure "will not be determinative of whether [an employer] shall be liable." The revisions leave open the possibility that failure to report may limit the damages an employee may recover, but they nonetheless represent a sea change in how courts evaluate what is generally known as a “Faragher-Ellerth” defense–that is, a defense that the employee failed to take advantage of the employer’s in-house harassment/discrimination complaint procedure and, thus, did not allow the employer to attempt to address the complaint before bringing an action in court or before an administrative agency.
The legislation also expands upon several 2018 amendments to the NYSHRL that previously covered only sexual harassment claims but now will apply to all claims of discrimination, harassment, and retaliation. The new provisions include:
A prohibition on confidential settlement agreements unless confidentiality is the “preference” of the alleged victim, the non-disclosure provisions are written in "plain English," and the victim is provided at least 21 days to consider the provisions;
Employer liability for independent contractors and certain other non-employees when the employer, its agents, or supervisors were aware of the harassment of the non-employee and failed to take "immediate and appropriate corrective action"; and
A prohibition on employers requiring employees to enter into mandatory arbitration agreements covering discrimination, harassment, or retaliation claims, except where inconsistent with federal law.
The new amendments also change the statute of limitations for filing a sexual harassment claim with the New York State Human Rights Commission from one year to three years. This change is consistent with recent amendments to the New York City Human Rights Law (NYCHRL).
We have seen sweeping changes to the NYSHRL and NYCHRL in the past year. As this trend continues with these new developments, it is imperative for all employers to keep their workplace policies current and ensure that employee trainings are comprehensive and effective