Last week, New York Governor Andrew Cuomo signed legislation into law that significantly amends the New York State Human Rights Law (“State Human Rights Law”) and New York Labor Law (“NYLL”), adding new protections and remedies, and replacing the “severe and pervasive” standard for workplace harassment claims with a lower standard.
Expansion of State Human Rights Law coverage
The State Human Rights Law will now apply to all employers in New York State, regardless of their size. Previously, only employers with four or more employees were generally subject to the State Human Rights Law. This expansion of coverage will go into effect on February 8, 2020, and apply to all claims filed on or after that date.
Liberal construction of State Human Rights Law
The legislation adds a specific instruction to the State Human Rights Law’s “liberal construction” language that it must be liberally construed to maximize the law’s remedial purposes, notwithstanding the construction of any comparably worded federal civil rights laws. This may lead courts to depart from parallel analysis with federal employment laws, similarly to how courts now analyze New York City Human Rights Law (“City Human Rights Law”) claims separately and apart from claims under its federal law counterparts. This change went into effect on August 12, 2019, and applies to all claims filed on or after that date.
Limitation on the use of non-disclosure agreements in the settlement of all discrimination claims
This amendment expands upon last year’s legislative curtailment of the routine use of non-disclosure agreements when settling sexual harassment claims, and now applies to settlements of all employment discrimination, harassment, and retaliation claims under the State Human Rights Law. Specifically, the new law removes authority from an employer to include, or agree to include, provisions in settlement agreements involving discrimination claims that would prevent the plaintiff from disclosing the underlying facts and circumstances to the claim or action “unless the condition of confidentiality is the plaintiff’s preference.”
If such confidentiality is the plaintiff’s preference, the confidentiality agreement must be provided in writing to all parties in plain English and, if applicable, the plaintiff’s primary language. The plaintiff must then be afforded a non-waivable 21-day period to consider its terms before execution. After execution, the plaintiff is then given a seven-day revocation period. These preference agreement requirements go into effect on October 11, 2019.
These restrictions do not appear to apply to the settlement amount or other terms or conditions of the settlement agreement. In other words, this amendment applies only to a non-disclosure provision that prevents the disclosure of the underlying facts and circumstances of a claim or action that involves discrimination under the State Human Rights Law or other laws.
Mandated award of attorneys’ fees for prevailing plaintiffs and complainants
The State Human Rights Law will now require that prevailing plaintiffs in court-filed actions and prevailing complainants at the New York State Division of Human Rights (“Division of Human Rights”) be awarded reasonable attorneys’ fees. All claims filed on or after October 11, 2019, will be subject to this amendment.
Punitive damages now available under the State Human Rights Law
Plaintiffs who prevail in an employment discrimination claim before the Division of Human Rights or in a civil court action will now be able to recover punitive damages from private employers. The availability of punitive damages applies to all claims filed on or after October 11, 2019.
Lengthened statute of limitations for sexual harassment claims
The statute of limitations to file claims of sexual harassment under the State Human Rights Law with either the Division of Human Rights or the court will increase to three years from the time that the allegedly unlawful conduct occurred. Discrimination claims other than those for sexual harassment remain subject to the one-year period for filing with the Division of Human Rights. This extended limitations period for claims of sexual harassment applies to all claims filed on or after August 12, 2020.
Lower standard for proving discriminatory harassment and elimination of a longstanding affirmative defense
The new law removes the “severe and pervasive” standard established under precedent for harassment claims under the State Human Rights Law and replaces it with a much-lower standard for plaintiffs. Any harassment that “subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in one or more . . . protected categories,” or because the individual has engaged in protective activity under the law, is unlawful “regardless of whether such conduct would be considered severe or pervasive under precedent applied to harassment claims.” This broad definition applies to harassment based on all protected categories under the State Human Rights Law: age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.
This change marks the State Human Rights Law’s departure from the federal standard, which follows the path previously charted by the City Human Rights Law. Notably, the law confirms that a plaintiff is also not required to present a similarly situated comparator with regard to the allegedly unlawful treatment at issue.
Furthermore, in the future, the fact that an employee did not make a complaint about the harassment “shall not be determinative” of an employer’s liability under the law. Thus, an employer’s ability to defend against a harassment claim by demonstrating that the employee failed to use the employer’s internal complaint process — i.e., the defense under federal precedent as established by Faragher v. City of Boca Raton, 524 U.S. 775 (1998) — is now unavailable for State Human Rights Law claims. This raises a concern that an employer who was not put on notice of such conduct may nonetheless be held liable for the unlawful harassment. An employer will nevertheless remain able to assert the affirmative defense that the alleged harassment does not rise above the level of “petty slights and trivial inconveniences,” as viewed through the lens of “what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” These changes apply to all claims filed on or after October 11, 2019.
Mandated distribution of employer’s written anti-harassment policy
The NYLL has also been amended and will require all employers to provide their employees, in writing (in English and in the employee’s primary language if the Department of Labor has created a template in that language), a notice containing the employer’s sexual harassment prevention policy, as well as the information presented at the employer’s annual sexual harassment prevention training program. This notice must be provided to all employees at the time of hiring and at every annual sexual harassment prevention training. This written notice distribution requirement went into effect on August 12, 2019.
Employer liability for discrimination against non-employees
Building upon last year’s sexual harassment protections afforded to non-employees working in an employer’s premises, the State Human Rights Law now protects such non-employee workers from all forms of unlawful discrimination. Specifically, the State Human Rights law, as amended, states that an employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant, or other person providing services pursuant to a contract in the workplace when the employer and/or its agents or supervisors knew or should have known that such non-employee was subjected to an unlawful discriminatory practice in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action. These additional non-employee protections go into effect for all claims filed on or after October 11, 2019.
Non-disclosure agreements within employment contracts
While the new law does not prohibit the use of non-disclosure agreements in employment contracts, it now requires employers to include an explicit carve out informing employees that they are not prohibited from speaking with law enforcement, administrative agencies such as the Equal Employment Opportunity Commission, or an attorney retained by the employee regarding any claims of unlawful workplace conduct. This carve-out requirement will become effective on October 11, 2019.
Prohibition of mandatory arbitration clauses for discrimination claims
Last year, New York amended the Civil Practice Law and Rules (CPLR) to add a new Section 7515, which largely prohibited mandatory arbitration clauses for sexual harassment claims, by rendering such “prohibited clauses” null and void, subject only to a narrow exception for union employers under the terms of a collective bargaining agreement
This new legislation expands the definition of “prohibited clauses” to extend to clauses requiring mandatory arbitration of any claim of discrimination, in violation of law prohibiting discrimination, including but not limited to the State Human Rights Law. Although this prohibition is set to go into effect on October 11, 2019, enforceability will prove challenging, since it may be subject to federal law preemption under the Federal Arbitration Act. Employers should consult with counsel regarding the enforceability of mandatory arbitration agreements that currently extend to discrimination claims.
Beginning in 2022, and every four years thereafter, the New York Department of Labor, in consultation with the Division of Human Rights, will be required to evaluate the impact of the current sexual harassment prevention guidance and model sexual harassment prevention policy. Upon the completion of each such evaluation, the Department of Labor will update its guidance and model policy as it deems necessary.
- For additional information regarding this exception, please see our earlier alert.
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- District Judge Denise Cote recently ruled that state law, specifically the State Human Rights Law’s earlier prohibition of clauses mandating arbitration of sexual harassment claims, was preempted by the Federal Arbitration Act. See Latif v. Morgan Stanley & Co. LLC, 18-cv-11528 (DLC) 2019 U.S. Dist. LEXIS 107020 (S.D.N.Y. June 26, 2019). Additionally, Judge Cote discussed this specific amendment in a footnote opining that the amendment would not provide a defense to the enforcement of the arbitration agreement. See id. at *9 n.2. It should be noted that a notice of appeal has been filed in the Latif matter.
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