The New York State Legislature has passed profound changes to the New York State Human Rights Law (NYSHRL) that, if signed into law by Governor Cuomo, would undoubtedly impact employers across New York State. While the Governor has not signed the legislation yet, he is expected to do so shortly.
The NYSHRL was modeled after a federal law, Title VII of the Civil Rights Act of 1964 (Title VII). Because the NYSHRL and Title VII are so similar, courts generally use the same standards to analyze discrimination and harassment claims that alleged violations of both Title VII and the NYSHRL. Under these statutes, employees can establish sexual harassment by proving that their employer subjected them to a hostile work environment. To prove a hostile work environment claim, the employee is required to demonstrate that the action complained of is so severe or pervasive that it altered the terms and conditions of their employment.
The New York State Legislature has now passed amendments to the NYSHRL that could uproot the legal foundation of discrimination and harassment claims in New York State. These changes would expand employer liability and substantially decrease the burden of proof for employees asserting claims of harassment, discrimination and retaliation.
First, the legislation would eliminate the requirement that alleged harassment be “severe or pervasive” to be actionable. An amendment to the NYSHRL explains that harassment based on an individual’s age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, genetic predisposition, familial status, marital status, or domestic violence victim status would be actionable “regardless of whether such harassment would be considered severe or pervasive.” This means that the “severe or pervasive” standard would no longer apply to any harassment case under the NYSHRL. Instead, employers would not be held liable if the conduct complained of “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.”
Second, the amendments to the NYSHRL would eliminate the effectiveness of a common defense available to employers against harassment claims. Currently, an employee’s failure to use their employer’s internal complaint procedure to report harassment claims serves as an affirmative defense for employers against liability. The proposed amendments would effectively eliminate this defense.
The coverage of the NYSHRL would also be extended. Currently, the NYSHRL only applies to employers with four or more employees, except for sexual harassment claims. The amended NYSHRL would eliminate this requirement, applying to all employers in New York State regardless of the number of employees.
Additionally, the latest amendments to the NYSHRL build off recent legislation targeted at decreasing sexual harassment in the workplace. The amended NYSHRL would prohibit mandatory arbitration of all claims of discrimination (not just complaints of sexual harassment). As with the use of mandatory arbitration agreements in sexual harassment cases, the validity of this change would be questionable as it conflicts with federal law permitting the use of mandatory arbitration agreements between employers and employees.
The new legislation would also prohibit the use of nondisclosure provisions in settlement agreements for all claims of discrimination (not just complaints of sexual harassment). As is the case with nondisclosure provisions in settlement agreements for sexual harassment claims, these provisions in settlement agreements for any discrimination claims under the NYSHRL would be permissible only if the complainant: (1) prefers confidentiality; (2) has at least 21 days to consider the nondisclosure provision before accepting its terms; and (3) has seven days to revoke acceptance of the nondisclosure provision in the settlement agreement.
Under the proposed changes to the NYSHRL, in addition to being liable for sexual harassment of non-employees (e.g., contractors, vendors, consultants, etc.), New York State employers could be liable for any form of unlawful discrimination that non-employees commit in the workplace. This means employers could be held liable for discrimination committed by a non-employee that is based on an employee’s age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, genetic predisposition, familial status, marital status or domestic violence victim status.
While each of the above-mentioned changes would become effective 60 days after Governor Cuomo signs the legislation, the expansion of coverage of the NYSHRL would not become effective until 180 days after the legislation is signed.
Finally, the amended law would extend the statute of limitations for filing administrative claims of sexual harassment with the New York State Division of Human Rights (NYSDHR) from one year to three years. This change would not become effective until one year after the Governor’s signature and would apply only to sexual harassment claims. All other claims under the NYSHRL are subject to a one-year statute of limitations when filed with the NYSDHR.
These changes would make it much harder for employers to defend claims under the NYSHRL and would likely increase litigation of these issues. In anticipation of these changes, New York State employers should revise their handbooks and employment policies to account for the likely changes and should consider additional training of supervisors and managers to help prevent such claims.
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