November 27, 2020

Volume X, Number 332


November 25, 2020

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New York State Expands Its Discrimination and Harassment Protections as its October 9 Training Deadline Approaches

In its latest development, the New York State Legislature expanded its signature legislation addressing sexual harassment training and prevention and passed a new bill this year that provides greater protections under the New York State Human Rights Law (NYSHRL). The Legislature’s changes to the law impact all discrimination and harassment claims under the NYSHRL, and Governor Andrew Cuomo is expected to sign the bill shortly. Notably, the law closely tracks the New York City Human Rights Law (NYCHRL).

October 9 Training Deadline

On the training front, employers should take note of and be prepared to comply with the State’s upcoming October 9, 2019 sexual harassment prevention training deadline and requirements. Employers must train all current employees by this date, and new employees should be trained as quickly as possible once their employment begins. Relatedly, the Legislature’s new bill requires employers to provide a notice that contains a copy of the employer’s sexual harassment prevention policy and the information presented at the employer’s sexual harassment training program at the time of an employee’s hire and when the employee receives annual training. Notices must be provided in English and in the primary language identified by each employee. The State’s notice provision will go into effect immediately upon enactment.

New Standard for Proving Discriminatory Harassment

The Legislature’s new law modifies the legal standard for harassment claims across all prohibited bases and establishes a lower standard of proof. Currently, harassment claims under the NYSHRL are subject to a ‘severe or pervasive’ standard – that is, the same standard of proof required under federal law. With the passage of this new bill, plaintiffs need demonstrate only that harassment, including retaliatory harassment, subjected them to “inferior terms, conditions, or privileges of employment.” This lower standard appears similar to the NYCHRL’s “treated less well” standard; however, the Legislature’s bill explicitly provides that an employee need not identify another individual to whom the employee’s treatment must be compared in proving his or her harassment claim. This provision becomes effective 60 days after the new bill becomes law.

Elimination of the Faragher-Ellerth Affirmative Defense

Mirroring the NYCHRL, the State’s new bill eliminates the well-known Faragher-Ellerth affirmative defense whereby an employer may avoid liability by showing that: (1) it attempted to prevent and correct harassing conduct; and (2) the employee unreasonably failed to take advantage of the employer’s preventative or corrective opportunities (such as internal complaint procedures). In its place, the bill provides an identical affirmative defense to the NYCHRL if an employer can demonstrate that the alleged harassment “does not rise above the level of what a reasonable victim of discrimination would consider petty slights or trivial inconveniences.” This change to the NYSHRL’s affirmative defense will take effect 60 days after the new bill is signed.

Longer Statute of Limitations for NYS Sexual Harassment Claims

Identical to the NYCHRL, the State’s bill impacts the viability of harassment claims brought by employees by extending the statute of limitations period for filing state claims of sexual harassment with the New York State Division of Human Rights (NYSDHR) from one year to three years. This provision will take effect one year after the bill is signed.

Recovery of Punitive Damages and Attorney’s Fees

Finally, the State’s bill now provides employees who prevail on their claims of discrimination against private employers in court or before the NYSDHR the ability to recover punitive damages and reasonable attorney’s fees. Currently, the NYSHRL does not authorize punitive damages and allows recovery of attorney’s fees only for gender-based discrimination claims.

While most of these changes will not affect the way in which companies operate or manage their employees, these amendments raise the stakes for companies with respect to harassment claims. Accordingly, New York employers should take note of the breadth of changes created by the Legislature’s new law, and review and update their policies as needed

© 2020 Vedder PriceNational Law Review, Volume IX, Number 212



About this Author

Blythe E. Lovinger, Labor and Employment Practice, Vedder Price Law Firm

Blythe E. Lovinger is a Shareholder in the New York office of Vedder Price and a member of the firm’s Labor and Employment practice group. 

Ms. Lovinger focuses her practice on employment litigation before federal and state courts, administrative agencies and arbitration panels. She has defended employers and senior executives against claims of discrimination, harassment and retaliation as well as actions brought under the Fair Labor Standards Act, the New York Labor Law and the Family and Medical Leave Act. Ms. Lovinger has extensive experience...

Jonathan A. Wexler, Vedder Price Law Firm, Labor Employment Attorney

Jonathan A. Wexler is a shareholder at Vedder Price and a member of the firm’s Labor and Employment Practice Area of the New York office. He represents private-sector, not-for-profit, and public-sector clients in litigation matters in federal and state courts, and before such administrative agencies as the Equal Employment Opportunity Commission, the New York State Division of Human Rights, the National Labor Relations Board, and the New York Department of Labor.

Monique Chase, Vedder Price Law Firm, New York, Labor and Employment Litigation Attorney

Monique E. Chase is an Associate in the New York office of Vedder Price and a member of the firm’s Labor & Employment practice area.

Ms. Chase represents clients in employment-related matters in federal and state court, before governmental agencies and regulatory bodies, and in ADR settings. She advises clients in a range of subjects, including discrimination, harassment and retaliation claims, disability accommodation and leave laws, Dodd-Frank and Sarbanes-Oxley whistleblower claims, background screening...