New York State is about to give another boost to its anti-harassment and anti-discrimination laws. On June 19, 2019, the state legislature passed a bill (S. 6577/A. 8421) that, once signed by the Governor Cuomo, will substantially change state law standards and obligations for harassment and discrimination issues in the workplace. New York State employers—including nonprofit organizations with at least one employee performing work in the state—should review their employment practices and procedures to ensure compliance with these new requirements.
The bill includes the following changes:
- A Lower Standard for Harassment Claims. Under the old standard, harassing behavior typically needed to be "severe and pervasive" to constitute illegal harassment. This standard coincided with the federal standard for harassment claims pursuant to Title VII of the Civil Rights Act of 1964. Under the new state law standard, an employee will have been illegally harassed if he or she is subject to "inferior terms, conditions, or privileges of employment" as a result of his or her membership in a protected class. This new standard is expected to substantially lower the bar for bringing a harassment claim under state law.
- An Employee's Failure to Complain to an Employer Is Irrelevant. The bill will eliminate a common affirmative defense for employers. Under the old standard, employers could sometimes avoid liability by establishing that the employee failed to use the employer's internal complaint procedures for preventing and addressing harassment in the workplace. Now, the bill expressly states that an employee's failure to complain internally about harassment shall not affect whether the employer is vicariously liable for the harassing behavior.
- Non-Employees Are Protected. The bill will expand the class of individuals who may bring a discrimination claim under state law. New York State previously extended its anti-harassment protections to non-employees, such as independent contractors, vendors, or consultants who provide services to an organization. Now, non-employees will be able to bring claims for all forms of unlawful discriminatory practices—not just harassment. Nonprofit organizations that frequently engage contractors and subcontractors should consider reviewing the indemnification provisions within their independent contractor agreements in order to mitigate the risk of non-employee discrimination claims.
- Punitive Damages and Attorneys' Fees Available. Punitive damages and attorneys' fees under the New York State Human Rights Law were previously for housing discrimination claims only. Now, aggrieved individuals under the New York State Human Rights Law may also recover punitive damages and attorneys' fees for harassment or other forms of unlawful discrimination (in addition to monetary damages for back pay, front pay, and emotional distress, among other traditional remedies).
- Restrictions on Non-Disclosure Agreements. The bill prohibits non-disclosure agreements that prevent the complainant from disclosing the underlying facts and circumstances of anydiscrimination claim. The only exception is where confidentiality is "the complainant's preference." Complainants must be allowed at least 21 days to review a non-disclosure agreement and 7 days after execution to consider whether to revoke the agreement. Beginning January 1, 2020, a confidentiality obligation that prohibits the disclosure of factual information related to a discrimination claim is automatically void unless the agreement notifies the employee that nothing therein prevents the employee from speaking about discrimination with law enforcement, the U.S. Equal Employment Opportunity Commission, the New York State Division of Human Rights, a local human rights agency, or an attorney. All New York employers should review their non-disclosure agreements and separation agreements to make sure their forms comply with these new requirements for confidentiality.
- Arbitration Clause Ban Extended. Like a number of other states, New York previously banned mandatory arbitration provisions for sexual harassment claims. The new bill extends that ban to claims for all forms of unlawful discrimination. There is a carve-out, however, for mandatory arbitration provisions set forth within a collective bargaining agreement. To the extent they have them in place, New York nonprofit employers will want to revisit their mandatory arbitration agreements in order to comply with this portion of the bill. Note that the U.S. District Court for the Southern District of New York recently held a mandatory arbitration ban to be void because of preemption by a federal law. It is likely there will be further court battles over that issue. See this Venable Labor and Employment alert for more information.
- Primary Language Requirements for Harassment Policy and Training Information. Savvy employers already conduct anti-harassment training and publish a well-drafted anti-harassment policy to employees. (In fact, the presentation of anti-sexual harassment training and distribution of a written sexual harassment policy are already mandatory in New York—see Venable's "Tip of the Moment" and Labor and Employment alerts on those requirements.) Under the new bill, New York employers will also be required to distribute their anti-harassment policies and training materials in employees' primary languages. The distributions are mandatory at the time of hire and at each annual anti-harassment training session. According to the new bill, the New York State Department of Labor will publish its model anti-harassment policy in multiple languages.
- Extended Statute of Limitations. Previously, a complainant needed to bring a sexual harassment claim under state law within one year after the conduct occurred. The new bill will extend that statute of limitations to three years.
Governor Cuomo is expected to sign the bill into law. Once he does, New York nonprofit organization employers should review, at a minimum, their independent contractor agreements, anti-harassment training materials and policies, arbitration agreements, and non-disclosure agreements for compliance with the new requirements described above.