New York State Legislature Enacts Sweeping Changes to Sexual Harassment Laws

Legislation was passed by the New York State Assembly and Senate on Wednesday, June 19, 2019, that would dramatically change the standards for defending claims of sexual harassment and other forms of harassment/discrimination in the workplace under the state Human Rights Law.

Assuming it is signed by the governor, the legislation will amend the New York State Human Rights and Labor Law, as well as other state laws, to:

Eliminate a long-recognized employer defense to discrimination claims that the claimant did not report the alleged harassment through the reporting process prescribed in the employer’s sexual harassment prevention policy. This provision would take effect 60 days after the bill is signed into law and applies only to claims that are filed on or after the effective date.
Eliminate the requirement that claimants alleging a hostile workplace environment must show harassment that is “severe” or “pervasive” and replaces it with an affirmative defense that the alleged harassing conduct “does not rise above the level of what a reasonable victim would consider petty, slight or trivial inconveniences”. This provision would also take effect 60 days after the bill is signed into law and applies only to claims that are filed on or after the effective date.
Extend the statute of limitations for claims of sexual harassment under the Human Rights Law to 3 years. This extended statute of limitations would take effect 1 year after the legislation is signed into law and applies only to claims that are filed on or after the effective date.
Add language stating that the Human Rights Law protections are to be construed liberally to prevent discrimination regardless of whether federal civil rights laws are so construed, and that defenses, exceptions and exemptions are to be construed as narrowly as possible. This provision would appear to take effect immediately upon signing but would apply only to claims that are filed on or after the effective date.
Require that every employer provide its employees, at the time of hiring and annually at the time that it provides sexual harassment prevention training, a written notice containing the employer’s sexual harassment prevention policy and the information presented in such training. The written notice must also be provided to each employee in the language identified by the employee as his or her “primary language” if it is not English. This provision appears intended to take effect immediately upon signing.
Make all employers, regardless of size, subject to the Human Rights Law for all forms of discrimination (not just discrimination based on sex). This provision would take effect 180 days after signed into law and applies only to claims filed on or after the effective date.
Prohibit unlawful discrimination in all forms related to non-employees (not just discrimination based on sex). This provision would take effect 60 days after the bill is signed into law and applies only to claims that are filed on or after the effective date.
Permit an award of punitive damages in cases of employment discrimination against private employers (not limited to the $10,000 that is presently allowed in housing discrimination cases). This provision would also take effect 60 days after the bill is signed into law and applies only to claims that are filed on or after the effective date.
Potentially mandate attorney’s fees for a prevailing party in employment discrimination actions, subject to a motion and showing that the action/proceeding brought was frivolous. This provision would also take effect 60 days after the bill is signed into law and applies only to claims that are filed on or after the effective date.
Expand the prohibition against confidentiality, or non-disclosure agreements (“NDAs”) in the resolution of all claims of employment discrimination; and expands the General Obligation Law provisions defining which terms/conditions of NDAs will be deemed void/unenforceable. This would become effective 60 days after signed into law, and some terms only apply to agreements entered into after 1/2020.

Governor Cuomo is expected to sign the bill into law soon. We will continue to monitor these sweeping changes and provide further client alerts as the details of the changes to state law are solidified.

Please contact any of the attorneys in our labor and employment practice group should you have any immediate questions regarding the new requirements.