July 1, 2019
By: Kimberly Klein
On June 19, 2019, New York lawmakers passed legislation that, if signed by the governor, would bring the State’s anti-harassment laws in line with New York City’s laws, making it easier for employees to bring harassment claims throughout New York State. The new law abolishes the “severe or pervasive” standard and eliminates a key defense for employers that enabled companies to avoid liability if allegations were promptly investigated. Governor Andrew Cuomo, whose office supported the legislation, is expected to sign the bill.
The changes, spurred on by the #TimesUp and #MeToo movements, come on the heels of a major overhaul of the State’s sexual harassment laws last April. here. All employers, regardless of size, are now affected by the changes, most of which take effect 60 days after the bill becomes effective.
The amendments extend the new protections to all protected classifications, not just claims based on sex, and significantly lower the threshold needed for complainants to show unlawful harassment. Under the new law, complainants need only prove that the harassing conduct subjected them “to inferior terms, conditions or privileges of employment because of the individual’s membership” in a protected classification, instead of having to show that they were subjected to conduct sufficiently “severe or pervasive to alter the conditions of employment.”
Among the other major changes are:
- Employees are no longer required to report harassment to maintain a claim.
- Consistent with City law, harassment is actionable only if it rises above “petty slights or trivial inconveniences.” This relatively low bar is to be evaluated based on the view of “a reasonable victim of discrimination with the same protected characteristics,” as opposed to a reasonable person standard.
- Settlements of any kind of harassment claims can no longer be kept confidential unless confidentiality is the complainant’s preference and the complainant is given 21 days, among other requirements, to consider a confidentiality clause.
- Employers may no longer require employees to sign agreements requiring employees to arbitrate any kind of discrimination claims. This provision may be preempted by federal law, which does permit arbitration of these claims.
- A “prevailing or substantially prevailing” party, including a respondent, can be awarded attorneys’ fees with respect to all claims of discrimination, provided they can show that the action brought was frivolous, as defined by the statute here
- It is now an unlawful discriminatory practice to discriminate against non-employees, such as contractors, subcontractors, vendors, and consultants, based on any protected classification, not just sex.
- Consistent with City law, NYS has extended the statute of limitations for sexual harassment complaints from one year to three years (goes into effect one year after enactment).
- The new law is to be construed liberally, while exceptions to and exemptions from the provisions “shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”
The new law provides protections to individuals based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because the individual has opposed any unlawful discriminatory practices or because the individual has filed a complaint, testified or assisted in any proceeding concerning an unlawful discriminatory practice.
Moses & Singer attorneys can assist employers in complying with the new law.