On August 12, 2019, New York Governor Andrew Cuomo signed into law new legislation that provides greater protections for workers in that state, and employers need to act to ensure they comply.

In the wake of the #MeToo movement, New York enacted tough new laws against sexual harassment.  In previous SGR Client Alerts, we have provided information on New York’s anti-harassment legislation regarding sexual harassment (click here to view), New York’s published guidance on compliance with its sexual harassment laws and mandatory employee training (click here to view), and the state’s model policy on sexual harassment.

Now, New York has gone further by enacting stricter laws, not just against sexual harassment, but also against discrimination based upon multiple protected classifications of workers.  The new law (omnibus bill A08421/S06577) will provide greater protections to more employees and advance the legislature’s goals of reducing unlawful harassment in the workplace. The law provides New York employers may not subject an individual to harassment because of an individual’s 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 practices prohibited by the law.  The law now applies to all New York employers of any size, and not just private employers with four or more employees as the law previously provided.

The law also expressly provides that certain defenses that might be available to an employer for claims brought under federal anti-discrimination statutes, such as a defense that the conduct complained of was not severe or pervasive, may not be available for claims brought under the New York statute, since it states that harassment because of someone’s protected status is unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.”  Rather, the statute provides that harassment is unlawful when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more protected categories.

While many employers have been able to defend against claims brought under federal law where the employees failed to reasonably avail themselves of available avenues of redress, such as failure to follow an employer’s employee handbook policies that require prompt reporting of suspected harassment, the New York statute now provides that the fact that such individual did not make a complaint about the harassment to their employer shall not be determinative of whether the employer shall be liable.

Moreover, although courts assessing claims brought under federal anti-harassment laws have often required that the plaintiff identify specific individuals outside of their protected classification who received more favorable treatment, the New York law now provides that nothing in the law shall imply that an employee must demonstrate the existence of an individual to whom the employee’s treatment must be compared.

Notwithstanding the above, the statute does give employers some defenses to claims, as the new law states that it shall be an affirmative defense to liability that 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.  This, however, is a more exacting standard than typically used by a majority of courts that look to see whether a reasonable person in general (and not just one in the same protected category as the plaintiff) would find the particular conduct at issue to rise to the level needed to be considered harassment.

Many states and localities have their own versions of comparable federal anti-discrimination laws, but when claims under such state and local statutes are considered, the courts often revert to the broader array of decisions applying analogous federal statutes to provide guidance and direction.  With the newly enacted New York statute, however, courts are seemingly discouraged from looking to federal court precedent for guidance. The statute specifically says that it is to be construed liberally to accomplish its remedial purposes of preventing harassment, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to those provisions of the New York law, have been construed, and courts analyzing the applicability of the anti-harassment law are to construe possible exceptions and exemptions to the law narrowly “in order to maximize deterrence of discriminatory conduct.”

Rather than wait around for an adverse court decision to be the impetus for taking action to deter discriminatory conduct, New York employers are encouraged to be proactive by providing increased and more extensive anti-harassment policies and training.  The statute specifically provides that every employer shall provide its employees “at the time of hiring and at every annual sexual harassment prevention training” a notice containing the employer’s sexual harassment prevention policy and the information presented at the employer’s sexual harassment prevention training program.  The sexual harassment policy is to be provided to employees in both English and the employee’s primary language if not English.

Throughout the #MeToo movement, a recurring concern among victims of harassment was that employers were often utilizing non-disclosure provisions in settlement agreements to prevent victims from being able to share information regarding their harassment or the resolution of their claims.  The New York law expressly prohibits the inclusion of nondisclosure provisions in any settlement, agreement or other resolution of any claim based on discrimination without the express consent of the complaining party.

An unsettled aspect of New York’s Human Rights Law is the issue of mandatory arbitration of disputes.  In 2018 the legislature revised the law to prohibit employers from requiring mandatory arbitration of sexual harassment claims.  The updated law recently signed by Governor Cuomo expanded that to prohibit employers from requiring employees to arbitrate any form of discrimination or harassment.  The legality of that aspect of the law, however, is in question.  On June 26, 2019, a federal District Court for the Southern District of New York ruled that this prohibition against arbitration agreements was not enforceable as it is preempted by the Federal Arbitration Act which permits arbitration. See Latif v. Morgan Stanley & Co., LLC, No. 18 cv 11528.  New York employers will want to keep an eye out for the ultimate outcome of this issue.

While the previous version of New York’s sexual harassment law granted courts the discretion to award the prevailing plaintiff attorney’s fees, the new law now mandates that reasonable attorney’s fees be awarded to a prevailing plaintiff.  The new law also allows for punitive damages of all employment discrimination and harassment claims, not just claims for sexual harassment.

The provisions of this new law take effect on October 11, 2019, 60 days after the Governor signed it into law.  In light of the new law, New York employers are encouraged to review their form employment, confidentiality, arbitration and separation/settlement agreements as well as the company’s employee handbook and anti-harassment and discrimination provisions.

If you have any questions regarding the New York anti-harassment statute, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.

This blog is intended to inform interested parties about legal matters of current interest and is not intended as legal advice.