By Christine Malafi

On August 12, 2019, Governor Cuomo signed reformations to New York’s sexual harassment laws passed in June by State lawmakers. The 2019 reforms provide additional protection to those who have been subjected to workplace harassment and require that state laws be interpreted and construed “to maximize deterrence of discriminatory conduct,” regardless of federal law.[1] These amendments will likely lead to a more employee-friendly ruling climate. The laws will generally take effect 60 days from August 12, 2019, with some provisions having an effective date of 180 days.

Under the new laws, as of February 8, 2020 the definition of “employer” within the entirety of the New York State Human Rights Law has been expanded to include all employers in the state, including the state and its political subdivisions as well (i.e., counties, towns, and villages)[2] and all employers can be liable for any unlawful discrimination they permit it to occur against non-employees, not just sexual harassment.[3]

Up until these reforms, those claiming workplace harassment under New York State law were required to show that the harassment to which they were subjected was “severe or pervasive” to sustain their claim or legal action. The new laws lower the burden of proof by removing the phrase “severe or pervasive” from the legal standard,[4] making “sporadic” sexual harassment sufficient to support a claim. Employers may be liable for harassment (an unlawful discriminatory practice) when the harassment subjects an individual to inferior terms, conditions, or privileges of employment due to his or her membership in a protected class.[5] Employers have affirmative defenses to liability only where the conduct alleged is considered to be petty slights or trivial inconveniences by a “reasonable victim of discrimination with the same protected characteristic.”[6] Further, the new laws prohibit employers from using a complaining employee’s failure to report the alleged harassment or follow the employer’s internal policies and procedures as an absolute defense to a sexual harassment lawsuit.[7] Given these lesser standards, employers should address all forms of workplace harassment to avoid potential liability.

This new law expands the prohibition against mandatory arbitration clauses to all types of discrimination, not just sexual harassment,[8] and also weakens the effectiveness of non-disclosure agreements by expanding protections against their use to not only sexual harassment claims, but all claims for discrimination.[9] The law further permits those employees who sign non-disclosure agreements to participate in sexual harassment investigations and, as of January 1, 2020, voids any non-disclosure obligations with regard to future claims of discrimination unless the employee is told that he or she can still speak with a reporting agency. Moreover, all non-disclosure agreements must be written in “plain English,” be provided to the complainant in his or her primary language, and be given to the complainant at least 21 days before it needs to be signed. After signing, the complainant has seven days to revoke the document.

Further, as of August 12, 2020, the reforms extend the civil limitations period for employees to file discrimination complaints with the State Division of Human Rights from one to three years[10] and the civil and criminal statute of limitations for rape in the second degree to 20 years after the incident, and for rape in the third degree to 10 years after the incident.[11]

The power of the New York State Attorney General’s Office to prosecute discrimination cases has been expanded to all protected classes,[12] and the State Division of Human Rights may award attorneys’ fees in all types of discrimination claims. Moreover, courts may award punitive damages in all types of discrimination claims (involving private employers[13] only); courts no longer have discretion in awarding attorneys’ fees; and the law now provides that the court “shall” award attorneys’ fees to the prevailing party (however, employers who prevail must show that the claim was frivolous to have attorneys’ fees awarded).

A copy of the employer’s sexual harassment prevention policy must be provided to every employee in English and in the primary language of each employee, and must be provided yearly, at the mandatory training sessions under the law.

Finally, the new laws require the State Department of Labor and Division of Human Rights to regularly update the model policies and study the ways in which further progress can be made to prevent sexual harassment in the workplace.[14]

These extensive legal reforms will surely have far-reaching consequences. Businesses are advised to again review their workplace policies as soon as possible to remain in compliance with all New York State sexual harassment laws. If you have any questions or concerns regarding these changes to New York State law, please contact our office.

[1] N.Y. Exec. Law § 300.

[2] Id. § 292(5).

[3] Id. § 296-d.

[4] Id. § 296(h) (effective October 11, 2019).

[5] Id.

[6] Id.

[7]  This defense had been known as the Faragher-Ellerth defense, named after two U.S. Supreme Court cases.

[8] N.Y. Civ. Prac. L & R § 7515(a)(2) & (3) (to extent not inconsistent with federal law; see Latif v. Morgan Stanley & Co., LLC, No. 1:18-cv-11528 (S.D.N.Y. 6/26/19)).

[9] N.Y. Gen. Oblig. Law § 5-336(1)(a)(b) & (2); N.Y. Civ. Prac. L & R § 5003-b.

[10] N.Y. Exec. Law § 297(5).

[11] N.Y. Criminal Procedure Law § 30.10(2)(a-1) & (a-2); N.Y. Civ. Prac. L & R § 213-c.

[12] N.Y. Exec. Law § 63(9) & (10).

[13] Id. § 292(37).

[14] N.Y. Labor Law  201-g  (beginning in 2022 and every four years thereafter).