Charles H. Kaplan, Grace A. Byrd
Employment and Labor
June 27, 2019
Last week, New York State’s
Legislature passed substantial and far-reaching amendments to the New York
State Human Rights Law, the state statute that prohibits discrimination and
discriminatory harassment. Governor
Andrew Cuomo has announced that he will sign these new pro-employee provisions
into law soon. This new legislation amplifies
laws that New York State enacted in 2018 to combat sexual harassment.
Here are some important facts about
these new amendments.
All Employers Now Covered
The New York State Human Rights Law
(“HRL” or the “Law”) will now cover all employers in New York State. This
amendment will go into effect 180 days after the Governor signs the bill.
Easier To Prove Harassment Claims
It will now be easier for employees
to satisfy the burden of proof for allegations, under the HRL, of
discrimination, harassment, and retaliation because of the following provisions
in the amended HRL.
(a) New York State law had adopted the
requirement, under the federal Title VII of the Civil Rights Act of 1964, that
an employee needed to demonstrate that alleged harassment was severe or
pervasive in order to prevail against an employer. New York City’s Human Rights
Law (the “City Law”), had abandoned this
standard over a decade ago, and requires
only that an employee demonstrate that the alleged harassment or retaliation
rises above the level of “petty slights and trivial inconveniences.” The HRL has now adopted the City Law standard.
(b) The HRL also required that employees
alleging discrimination demonstrate that they were treated less favorably than
a fellow worker not in the same protected class. The HRL no longer contains
this comparator provision.
(c) The HRL also provided that where an employee
had never used the employer’s internal complaint process, the employer could
use that failure as a defense to a harassment claim. Now, the fact that an employee did not
complain about harassment “shall not be determinative” of an employer’s
liability under the HRL.
These evidentiary revisions will
all become effective 60 days after the Governor signs the bill.
Expansion of Attorneys’ Fees Awards to Employees
The HRL will now require that a
prevailing party “shall” be awarded attorneys’ fees, by the NYS Division of
Human Rights (the “Division”) or a court. However, for a prevailing employer to
obtain attorneys’ fees, it will need to prove that the plaintiff employee’s lawsuit
was frivolous. This attorneys’ fees provision will go into effect immediately
upon the Governor’s signing the bill into law.
Punitive Damages Now Available to Employees
The HRL will also now provide for
the award of punitive damages, as well as the back pay, front pay, and
compensatory damages that are already available under the Law. This provision
will become effective 60 days after the Governor signs the bill.
Liberal Construction of HRL Now Mandated
upon the Governor’s signature, the HRL will require that courts and the
Division construe the HRL liberally and exceptions to the Law narrowly to
“maximize deterrence of discriminatory conduct,” even when this causes a
different result than under Title VII or other comparable federal law.
Coverage of Independent Contractors Expanded
Effective 60 days after enactment, the
HRL will now cover independent contractors for all kinds of unlawful
discrimination, harassment, and retaliation.
Longer Statute of Limitations for Sexual Harassment
Effective one year after enactment,
the HRL will have a three year statute of limitations for filing an
administrative claim of sexual harassment with the Division. The statute of limitations for other discrimination
claims will remain one year for submissions to the Division. Employers should note that the statute of
limitations under the Law for claims initially filed in court is already three
Stricter Limits on Non-Disclosure Agreements
In 2018, New York dramatically
constrained employers’ use of Non-Disclosure Agreements (“NDAs”) in sexual
harassment cases. The HRL will now, with regard to all forms of discrimination,
harassment, and retaliation claims, prevent employers from including NDAs in any
agreement to resolve claims, “unless the condition of confidentiality is the
complainant’s preference.” Even where confidentiality
is the employee’s preference, the Law imposes several requirements that must be
met before the NDA may be used. This NDA
provision will go into effect 60 days after enactment.
Effective January 1, 2020, NDAs
that are part of an employment agreement must contain language that expressly
provides that the employee or future employee is not prohibited from “speaking
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.”
Mandatory Arbitration Now Barred
In 2018, New York prohibited the
mandatory arbitration of sexual harassment claims. Effective 60 days after
enactment, the HRL will now expand this provision to prohibit mandatory
arbitration of any discrimination, harassment, or retaliation claim. However,
the Federal Arbitration Act (“FAA”) may limit the effect of this provision
outside of the transportation industry, to which the FAA does not apply.
New Notice Requirements
upon the Governor’s signature, the Law will require employers to give employees
in New York, when hired and during annual sexual harassment prevention
training, a notice that contains the “employer’s sexual harassment prevention
policy and the information presented at such employer’s sexual harassment
prevention training program.”
This Client Alert has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.