United States: Insights Into New York’s New Employment Discrimination Laws

On August 12, 2019, Governor Andrew Cuomo signed an omnibus bill into law that overhauls state antidiscrimination laws and serves to significantly alter the precedential value of cases upon which employers have relied for decades in defending harassment claims. The New York State Senate and Assembly passed the omnibus bill, which includes various amendments to the New York State Human Rights Law (NYSHRL), the General Obligations Law, the Civil Practice Law and Rules (CPLR), and the New York Labor Law (NYLL) and which take effect as follows.

Changes Effective on August 12, 2019

• Upon hire and at every annual sexual harassment prevention training program, employers must provide employees a notice containing the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program” (in English and in the primary language of the employee).
• NYSHRL shall be construed “liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed,” and exceptions and exemptions “shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”

Changes Effective on October 11, 2019

• All private sector employers are subject to the antidiscrimination provisions of the NYSHRL.
• Harassment is considered “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment” because of his or her protected characteristics. There is an affirmative defense to liability if “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” “The fact that such individual did not make a complaint about the harassment to [his or her] employer . . . shall not be determinative of whether” such employer is liable. Claims by domestic workers are subject to the same standard.
• The prohibition against unlawful discrimination based upon each of the protected categories identified in the NYSHRL extends to nonemployees.
• NYSHRL permits the prevailing claimant to recover both attorneys’ fees and punitive damages from private employers.
• Employers are prohibited from requiring nondisclosure clauses in any settlement, agreement, or other resolution of any claim where the factual foundation for which involves discrimination, including but not limited to under the NYSHRL, unless the condition of confidentiality is the complainant’s or plaintiff’s preference. Any nondisclosure term or condition must be provided in writing to all parties in plain English and, if applicable, the primary language of the complainant, after which he or she will have 21 days to consider such term or condition and 7 days to revoke the acceptance after execution of such agreement.
• Any nondisclosure term or condition will “be void to the extent that it prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena from or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.”
• Employers are prohibited from requiring employees to sign agreements that require mandatory binding arbitration of claims relating to any form of discrimination.

Additional Provisions

• In addition to the above changes, any agreement entered into on or after January 1, 2020, “that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable, unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement,” the Equal Employment Opportunity Commission, the New York State Division of Human Rights (NYSDHR), “a local commission on human rights, or an attorney retained by the employee or potential employee.”
• As of August 12, 2020, sexual harassment complaints filed directly with the NYSDHR must be filed within three years (previously one year) after the alleged harassment.
• The New York State Department of Labor and NYSDHR must reevaluate and update the model sexual harassment prevention policy and guidance document every four years, beginning in 2022.

Written by Simone R.D. Francis, Shabri Baliga, and Aaron Warshaw of Ogletree Deakins

© 2019 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.