On June 19, 2019, the New York State Assembly and Senate passed an omnibus bill (A08421/S06577) proposing sweeping amendments to existing state sexual harassment and discrimination laws. The pending law, which has the support, but not yet the signature, of Governor Andrew Cuomo, introduces numerous new protections for workers, while requiring more proactive harassment prevention procedures from employers.
New York State has long had legislation prohibiting sexual harassment and discrimination in the workplace. Significant portions of these laws, like the New York State Human Rights Law, the Sexual Orientation Non-Discrimination Law and the New York Labor Law, among others, rely on standards established by the U.S. Supreme Court. Two specific U.S. Supreme Court standards in particular have provided essential foundations for prior New York State harassment and discrimination legislation and jurisprudence. First, in defining sexual harassment under Title VII, the Supreme Court has held that harassment must be “severe or pervasive.” Second, the “Faragher-Ellerth defense” afforded New York employers an affirmative defense to sexual harassment claims, where the claimant did not follow the employer’s complaint procedure.
The new bill would change that. It would remove both the “severe or pervasive” requirement for sexual harassment claims and the Faragher-Ellerth defense for employers. Once the bill is signed by the Governor and becomes effective, claimants will need only to show that harassment, sexual or otherwise, rose above the level of “petty slights” or “trivial inconveniences” to establish a claim. As for the Faragher-Ellerth defense, the fact that an employee did not make a formal complaint regarding harassment to an employer, employment agency or labor organization “shall not be determinative” of employer liability.
The bill also, among other provisions, would:
- Require that employers provide a sexual harassment prevention policy to employees in both English and the employee’s primary language if not English;
- Extend New York State Human Rights Law protections (including the prohibition on contract provisions that mandate arbitration) to all forms of discriminatory harassment based on all protected classes;
- Prohibit the inclusion of nondisclosure agreements in any settlement, agreement or other resolution of any claim based on discrimination without the express consent of the complainant;
- Expand New York State Human Rights Law protections to domestic workers and non-employees, such as independent contractors, subcontractors, vendors, consultants, and those who provide services pursuant to a contract, as well as to their employees;
- Extend the statute of limitations for sexual harassment complaints filed with the New York State Division of Human Rights from one to three years; and
- Require attorneys’ fees be paid to the prevailing party in employment discrimination actions.
This new law would establish increased oversight obligations and require affirmative preventive measures from New York employers. Shortly after the passage of the bill, Governor Cuomo penned an op-ed for the New York Daily News, in which he described the new sexual harassment law as “the country’s strongest.” Its requirements, including the expansion of the definition of “employee” to include contracted service providers, the removal of the Faragher-Ellerth defense and the elimination of the “severe or pervasive” standard, provide enhanced protections for employees and other service providers. Employers should prepare to address the new requirements, including amending existing policies and forms of separation and settlement agreements.
Most immediately New York employers will be required to publish a sexual harassment prevention policy in their employees’ primary languages. The requirement to translate sexual harassment policies takes effect immediately following the passage of the bill into law.
Employers also should prioritize reviewing existing employee contracts and mandatory arbitration provisions. Sixty days after the bill becomes law, the prohibitions on both mandatory arbitration for discrimination claims and nondisclosure agreements following discrimination matters both take effect. In addition, any contract between an employer and an employee or potential employee entered into after January 1, 2020 that prevents the disclosures of facts related to a future claim of discrimination is void and unenforceable unless it notifies the individual that it does not prevent disclosure to law enforcement, the EEOC, the state division of, or local commission on, human rights or the individual’s attorney.
Additionally, the protections of the New York State Human Rights Law will be extended to non-employee service providers so employers should review arrangements with these groups as well.
Employers also should review carefully the definition of sexual harassment in their company policies to ensure that they are not limited to “severe or pervasive” conduct and that policies do not purport to suggest that procedural reporting failures by complainants will preclude claimants from obtaining relief.
The bulk of this law would take effect within sixty days of passage, so it would be prudent for employers to begin amending, and translating, company policies and agreements now. The bill already has the Governor’s vocal support and, as such, it will likely also have his signature soon.