New York Issues Updated Guidance on New Antidiscrimination Laws

As we previously reported here and here, New York State significantly amended its antidiscrimination laws, with many of the changes effective as of October 11, 2019. The state issued updated FAQ guidance regarding these new requirements on October 29, 2019. While the guidance leaves unanswered many questions about the amended law, it provides valuable information regarding the new requirements. Below are highlights from the amended guidance.

• The New State Harassment Standard. The updated guidance clarifies that, as of October 11, 2019, harassment no longer needs to be “severe or pervasive” to be unlawful. Rather, “harassment is unlawful if it [is] anything [other] than ‘petty slights or trivial inconveniences.’” Notably, the guidance does not include a fuller explanation that, under the amended state law, unlawful harassment is a practice that “subjects an individual to inferior terms, conditions or privileges of employment” because of protected characteristics.
• Sexual Harassment Prevention Notice. Under the amended law, employers must, “at the time of hiring” and at every annual sexual harassment prevention training, provide employees with 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).
  
  The state’s updated guidance recommends that “at the time of hiring” means that employers should provide “this notice prior to or at the beginning of their first day of work.”

  The guidance further clarifies that the “notice must be delivered in writing, which includes in print or digitally (for example, via email). The notice must link to or include, as an attachment or printed copy, the policy and training materials.” The training materials “include any printed materials, scripts, Q+As, outlines, handouts, PowerPoint slides, etc.” If employers are using training providers, the employer and training provider “should make reasonable efforts to provide [employees with] the information, including providing print-outs or links to training materials, scripts or PowerPoint slides, etc.”

  The updated guidance also states that training materials must include the employer’s anti-harassment policy. According to the updated guidance, “[t]his may be done in print or electronically (for example via email). If a copy is made available on a work computer, workers must be able to print a copy for their own records.”

• Other Languages. The state’s model training materials, which have been translated into Spanish, Chinese, Korean, Russian, Italian, Polish, Bengali, and Haitian-Creole, are now available online. Per the guidance, employers must provide employees with an anti-harassment policy and mandatory training both in English and in an employee’s primary language if it is one of these languages. Employers should consider reviewing their practices to ensure that employees are provided an anti-harassment policy and training in their native languages.
• Nondisclosure Agreements. Under the amended law, employers are prohibited from requiring nondisclosure clauses in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, in violation of laws prohibiting discrimination” to include “any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.” Under prior law, this prohibition was limited to sexual harassment claims.

As expected, the state’s guidance clarifies that employers must follow the same steps (previously outlined here for sexual harassment claims) for claims involving discrimination. Specifically, for such a nondisclosure agreement to be effective, the guidance provides the parties must enter into two separate agreements: (1) a first agreement that “memorializes the preference of the person who complained” in compliance with the 21-day waiting and 7-day rescission periods; and (2) a second agreement that contains the nondisclosure provision and any other terms and conditions of the parties’ agreement.

The amended guidance further explains that these requirements apply to sexual harassment claims as of July 11, 2018, and discrimination claims as of October 11, 2019.

• Timing for Annual Sexual Harassment Training. Under existing state law, employers must provide sexual harassment training on an annual basis and, under the prior guidance, the first annual training session was required to have been completed by October 9, 2019. The amended guidance has removed this deadline and states only that “[e]mployees must be trained at least once per year. This may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses.” It is unclear whether the state removed the October 9, 2019, deadline because it had already passed or because the state no longer requires the first training to have been completed by this date.

Ogletree Deakins will continue to monitor developments on the amended New York law and will post updates on the firm’s blog as additional guidance becomes available.