A Sweeping Overhaul: An Employer’s Guide to the Latest Expansion of New York State’s Discrimination Laws

Overall, these changes move NYS discrimination laws away from federal standards and closer to the New York City Human Rights Law (NYCHRL), which is nationally recognized for its friendliness to employees.

Key Provisions that Apply Regardless of Whether an Employee Files a Complaint:

1. Universal Coverage. All employers, regardless of their size, will be required to comply with the NYSHRL. Currently, employers with four or more employees must comply. Effective: February 8, 2020 (180 days after enactment)
2. Restrictions in Employment Agreements. Employers will not be allowed to prohibit employees from disclosing facts related to future discrimination claims in employment agreements, unless the agreements made exceptions for law enforcement, the EEOC, the NYSDHR, a local human rights agency, or employees’ attorneys. Effective: January 1, 2020
3. Additional Sexual Harassment Policy Requirements. Employers must give each employee a personal copy, in English and in the employees’ primary language(s), of the employer’s sexual harassment policy and the information presented at every sexual harassment training session. Effective: August 12, 2019 (Immediately upon enactment)
4. Mandatory Arbitration Prohibited. Employers will no longer be permitted to require an employee to sign an agreement that mandates binding arbitration for sexual harassment and discrimination based claims. Effective: October 11, 2019 (60 days after enactment)

Key Provisions that are Triggered When an Employee Files a Complaint:

1. “Non-Employees” Can Hold Employers Liable for Harassment. If the employer knew or should have known about the harassment and failed to take appropriate corrective action, then “non-employees” will be able to pursue claims against companies for any form of discriminatory behavior. The term “non-employees” includes contractors, subcontractors, vendors, consultants, or anyone else providing services in the workplace. Effective: October 11, 2019 (60 days after enactment)
2. Extended Statute of Limitations.  A complaint of sexual harassment will be able to be filed with NYSDHR up until three years after the alleged unlawful harassment. Effective: August 12, 2020 (One year after enactment)
3. Lower Standard Used to Evaluate Claims. Soon, it will be easier for a plaintiff to prove a harassment claim, based on any protected characteristic, as behavior that “subjects an individual to inferior terms, conditions, or privileges of employment” is unlawful discrimination. This means that not only will a plaintiff no longer be required to prove that the harassment was “severe or pervasive,” but an employer could potentially be held liable for even a stray remark. Effective: October 11, 2019 (60 days after enactment)
4. Certain Affirmative Defense Eliminated. One of the most significant changes to the law is that employers will no longer be able to rely on the Faragher-Ellerth defense which currently allows employers to rely on plaintiff’s unreasonable failure to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Further, an employee’s failure to complain to an employer, employment agency, or labor organization will “not be determinative” of an employer’s liability. Effective: October 11, 2019 (60 days after enactment)
5. Liberal Interpretation. Courts are required to narrowly construe exceptions to and from the provisions of the NYSHRL, even if comparable federal laws would not do so. Effective: August 12, 2019 (Immediately upon enactment)
6. Non-Disclosure Provisions are Prohibited in Settlement Agreements. The inclusion of non-disclosure agreements or provisions in a settlement or separation agreement resolving a claim based on any form of discrimination will be prohibited, unless the complainant prefers confidentiality and gives express consent. Effective: October 11, 2019 (60 days after enactment)
7. Punitive Damages and Attorneys’ Fees Available. In any employment discrimination action against a private employer, successful plaintiffs will be able to recover punitive damages and reasonable attorneys’ fees. Effective: punitive damages October 11, 2019 (60 days after enactment) and attorneys’ fees August 12, 2019 (Immediately upon enactment)

10 Tips for Employers:

1. Review your company’s definition of harassment, including sexual harassment, and certify that the policies do not limit harassment to “severe or pervasive conduct.”
2. Review the policies and remove anything that could suggest that an individual’s failure to report a harassment claim to an employer, employment agency, or labor organization would preclude relief.
3. Check posted notices relating to discrimination and sexual harassment and ensure they reflect the new law.
4. Modify annual employee training programs to include both sexual harassment and harassment based on any protected characteristic.
5. At the time of hire and all subsequent harassment trainings, provide employees with a copy, in English and the employees’ primary languages, of the sexual harassment policy and information given during training.
6. Amend harassment policies so that contractors, subcontractors, vendors, consultants, or anyone else providing services in the workplace is covered.
7. Reexamine all existing employee contracts, and take note of any mandatory arbitration provisions.
8. Pay close attention to the NYSDOL’s guidance about how to structure non-disclosure agreements with employees. This includes non-disclosure agreements addressing future claims of discrimination, which takes effect January 1, 2020.
9. Employers should understand that they may use appropriately tailored non-disclosure provisions in a separation agreement with an employee, despite the fact that the separation was caused by a discrimination dispute.
10. Conduct a review of current practices and seek assistance from counsel to help evaluate compliance with latest regulations.