Important Changes to New York State Sexual Harassment and Employment Discrimination Law

August 12, 2019 - On August 12, 2019, Governor Andrew M. Cuomo signed legislation that significantly strengthens several elements of the New York State Human Rights Law, expanding protections for employees and increasing potential liability for employers.  The key provisions, which have varying effective dates, are as follows:

Increased Employer Coverage
The definition of “employer” under the New York State Human Rights Law now includes “all employers within the state,” and no longer excludes employers with fewer than four employees from coverage.

Effective October 11, 2019

Lower Requirement for Harassment Claims
The new law removes the “severe and pervasive” standard for a successful workplace harassment claim.  Employees now will be able to establish an “unlawful discriminatory practice” where the harassment “subject[ed] an individual to inferior terms, conditions or privileges of employment” because of the individual’s membership in a protected class.  Although “petty slights and trivial inconveniences” still will not amount to harassment under the new law, this lowered standard makes it significantly easier for employees to succeed on sexual harassment claims.

Effective October 11, 2019

Comparator Not Necessary
An employee will not need not show that he or she was treated less well than a similarly situated employee outside his or her protected class.

Effective October 11, 2019

Removal of Faragher-Ellerth Affirmative Defense
The new law makes the federal Faragher-Ellerth defense unavailable to employers as an affirmative defense to harassment claims brought in a New York state court.  This defense shielded employers from liability where an employee failed to utilize the employer’s internal complaint procedure to report harassment.  Now, while an employer may still raise the defense, it no longer will be determinative in allowing employers to escape liability.

Effective October 11, 2019

Longer Statute of Limitations
The statute of limitations for filing sexual harassment complaints with the State Division of Human Rights has been extended from one year to three years. 

Effective August 12, 2020 for claims filed after that date.

Limitation of Nondisclosure Agreements
For settlement agreements based on allegations of any kind of unlawful discrimination, a nondisclosure agreement may not be included unless it is the complainant’s preference that the agreement be confidential.  Previously, this requirement applied only to settlement agreements based on allegations of sexual harassment.  Further, nondisclosure agreements or provisions that restrict or prohibit (i) an employee’s participation in an investigation conducted by government officials, or (ii) an employee’s ability to disclose facts necessary to get unemployment insurance, Medicaid or other benefits, will be  void. 

Effective October 11, 2019

For all agreements or contracts entered into on or after January 1, 2020, nondisclosure provisions that prevent employees from disclosing information related to any future claim of discrimination are unenforceable unless the provision notifies employees that they are not prohibited from speaking to law enforcement, the EEOC, the state or local division of human rights or a retained attorney.

Effective January 1, 2020.

Punitive Damages and Attorney’s Fees
Punitive damages will be available for plaintiffs who succeed in proving their discrimination claims relating to private employers.  In addition, courts will be required to award attorney’s fees to the prevailing party on employment discrimination claims.

Effective October 11, 2019

Prohibition of Mandatory Arbitration Clauses
The 2018 prohibition against mandatory arbitration clauses in settlement agreements of sexual harassment claims now applies to settlement agreements involving all types of discrimination claims.

Effective October 11, 2019

Unless Congress shortly enacts similar new provisions, sexual harassment claims likely will be filed increasingly in New York State rather than federal courts because New York State’s elimination of the “severe and pervasive” requirement and the federal Faragher-Ellerth defense are significant.