Expansive Changes to the New York State
Human Rights Law: What You Need to Know
Cindy Lapoff, Esq.
Kevin Connell, Esq.
On June 19, 2019, the New York State Legislature expanded protections against discrimination and harassment in the workplace under the New York State Human Rights Law (“HRL”). Signing the bill into law on August 12, 2019, Governor Andrew Cuomo recently finalized numerous amendments to the HRL, some taking immediate effect with others activating in the coming months. This expansion follows last year’s sweeping legislative initiatives regarding sexual harassment prevention, notably in its new requirements of mandatory training and renewed policy requirements.
The latest round of legislative changes further expands workplace protections in ways that align closely to the more progressive New York City Human Rights Law (“NYCHRL”). These revisions to the HRL make it easier for individuals to assert and prove discrimination and harassment claims, causing employers to increase their efforts to create and maintain an environment free from discrimination and harassment. Below is a summary of the most significant changes under the recent amendments to the HRL:
1. “Employer” Definition Expanded. The revised definition of “employer” includes all employers in New York State, including the State and its political subdivisions, regardless of size. Previously, the definition did not include employers with fewer than four employees or the State. The definition is also expanded to define “private employer” as “any person, company, corporation, labor organization, or association.” The significance of this change is that private employers may be subject to punitive damages (see item #7). This provision will go into effect 180 days after the bill is signed into law.
2. Non-Employee Recovery for All Forms of Discrimination. Non-employees, including contractors, subcontractors, vendors, consultants, or any other person providing services under a contract in the workplace may now recover from the employer for all forms of discrimination covered under the HRL. Previously, the HRL limited recovery for these workers to cases involving sexual harassment. The new provisions codify discriminatory harassment into the law, making it illegal to subject any worker to harassment because of that individual’s membership in a protected class or because they have filed a complaint or assisted in any related proceeding. The employer can be held liable if their “agents or supervisors” knew or should have known of the discriminatory conduct. The employer will have certain affirmative defenses, including the degree of control it exercised over the alleged offender. This provision will go into effect 60 days after the bill is signed into law and will apply prospectively only.
3. Lowering the Standard of Proof. Any harassment based upon a protected class, or for participating in protected activity, will be unlawful “regardless of whether such harassment would be considered severe or pervasive.” Under the amended HRL, complainants asserting workplace harassment claims must merely demonstrate that the harassment has subjected them to “inferior terms, conditions, or privileges of employment” because of their membership in a protected class. This is a significant departure from the prior standard, which required complainants to prove that workplace harassment was “severe or pervasive” in nature in order to prevail on their claims. This provision will go into effect 60 days after the bill is signed into law.
4. Eliminating the Faragher-Ellerth Defense. The Faragher-Ellerth defense previously allowed employers to avoid liability if they (1) attempted to prevent and correct the harassing conduct and (2) the employee unreasonably failed to take advantage of preventative and corrective opportunities. The amended HRL outrightly rejects this defense. In fact, the new provision states that employers may not avoid liability even if the worker did not make a complaint about the harassment to the employer. Instead, employers will avoid liability only if they prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristics would consider petty slights or trivial inconveniences.” This provision will go into effect 60 days after the bill is signed into law and will apply prospectively only.
5. Sexual Harassment Policies and Training Materials. Employers are now required to provide employees with company sexual harassment policies and sexual harassment training materials in English and in each employee’s primary language. Moreover, these materials must be provided at the time of hire and during each annual sexual harassment prevention training.
These requirements build upon the minimum standards for sexual harassment prevention training that were implemented in 2018, which mandate the training must (1) be interactive; (2) include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights; (3) include examples of conduct that would constitute unlawful sexual harassment; (4) include information concerning the federal and state statutory provisions involving sexual harassment and remedies available to victims of sexual harassment; (5) include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and (6) include information addressing conduct by supervisors and any additional responsibilities for such supervisors.
New York State has created a free program that fulfills most of the requirements, with the exception of the interactive component. Additionally, the Department of Labor and Division of Human Rights will assess the impact of this model and plans to update the materials every four years as needed starting in 2022. This provision will go into effect immediately after the bill is signed into law.
6. Broad Interpretation and Application. Under the new provisions, the HRL will be read independently of similar federal civil rights laws and other comparable laws in addition to requiring that exemptions and exceptions to the HRL must be “construed narrowly in order to maximize deterrence of discriminatory conduct.” Consistent with this specification, the statute of limitations to file a sexual harassment complaint with the New York State Division of Human Rights will be lengthened from one to three years, however, this particular portion will not be effective for one year. The rest of this provision will go into effect immediately after the bill is signed into law.
7. Punitive Damages & Attorneys’ Fees. Punitive damages will now be available in all cases of “employment discrimination related to private employers” under the HRL. Moreover, the new provisions make attorneys’ fees, mandatory for the prevailing party and are no longer discretionary. However, if the employer is the prevailing party, it must demonstrate that the claim was frivolous before an award of fees will be made.
8. Ban on Mandatory Arbitration Clauses. Extending last year’s elimination of mandatory arbitration provisions for sexual harassment claims, the new provisions extend this prohibition to all discrimination claims. This provision will go into effect 60 days after the bill is signed into law. It is unclear whether this provision will survive expected challenges that it is pre-empted by the Federal Arbitration Act.
9. Restrictions on Non-Disclosure Provisions. The amended HRL applies restrictions on non-disclosure provisions to all discrimination claims. Specifically, non-disclosure agreements will be prohibited in any settlement for a claim of discrimination unless non-disclosure is the complainant’s preference. Other requirements include: (1) the agreement is in plain English or in the primary language of the complainant; (2) the complainant is given 21 days to consider the agreement; and (3) the complainant is given the option to revoke the agreement for up to seven days after execution. The agreement may not prevent the individual from “initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with an investigation,” nor from “filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the individual is entitled.” On and after January 1, 2020, any provision that prevents disclosure of factual information is void and unenforceable unless it also notifies the claimant that he/she is not prohibited from speaking with law enforcement, the EEOC, the Division of Human Rights, a local Human Rights Commission, or an attorney retained by the claimant.
Aside from these restrictions, the amended HRL does not preclude employers from using non-disclosure provisions altogether. Otherwise broad non-disclosure provisions may still be used absent a discrimination dispute. Even if a discrimination dispute is present, the parties may agree to incorporate non-disclosure provisions in a case involving discrimination so long as they comply with the requirements above. This provision will go into effect 60 days after the bill is signed into law.
10. Racial Bias Regarding Hairstyles. In addition to the pending amendments to the HRL above, Governor Cuomo recently signed into law an expansion on racial bias laws to include traits historically associated with race, including but not limited to, hair texture and “protective hairstyles,” including braids, locks, and twists. Employers should be conscious of this requirement when reviewing dress code policies. This provision took effect immediately.
About the Authors
Cindy Lapoff is a partner with the firm, and works on employment and employee benefits matters for a wide variety of clients. With over 23 years of experience, her areas of expertise encompass a broad range of employment-focused legal matters, including ERISA, the Affordable Care Act (“Obamacare”), wage and hour matters, harassment and discrimination cases, and labor union arbitrations. Cindy has represented employees, unions, employers, and employee benefit plans in Federal and State court as well as before several administrative agencies.
Kevin Connell is an associate with the firm, primarily assisting with issues related to Civil Litigation, Labor & Employment Law, and Insurance Defense. Kevin works with a diverse collection of practice areas in the Labor & Employment Law Group, including harassment and discrimination, employee discipline, wage and hour issues, and other collective bargaining matters. Kevin also has a background in handling claims before the New York State Division of Human Rights and Equal Employment Opportunity Commission.