New York State's New Legislation Amends Sexual Harassment and Discrimination Laws

On June 19, 2019, the New York State Legislature passed Assembly Bill A8421 / Senate Bill 6577, and Governor Andrew Cuomo signed the bill into law on August 12, 2019. This legislation amends laws regarding sexual harassment and discrimination. Provisions of the new legislation go into effect on several dates.

Effective August 12, 2019, employers must provide their employees, at the time of hiring and at the annual sexual harassment prevention training, written notice containing the employer's sexual harassment prevention policy and the information presented at the employer's sexual harassment prevention training program.

Also effective August 12, 2019, the New York State Human Rights Law is to be liberally construed regardless of how federal civil rights laws, including those with similarly worded provisions, are construed.

On October 11, 2019, the following changes will take effect:

• Lowering of the burden of proof in harassment cases by eliminating the "severe or pervasive" standard

• Limitation of the employer's ability to defend against claims on the basis that the harassment was never brought to the employer's attention

• Elimination of the requirement in discrimination cases that the complainant identify a comparator (i.e., an individual outside the complainant's protected class who received more favorable treatment under comparable circumstances)

• Extension of anti-discrimination protection to some non-employees, including contractors, vendors, and consultants

• Protection for domestic workers to the same extent as other employees

• Allowance of the award of punitive damages in discrimination cases brought against private employers

• Award of attorneys' fees to the prevailing party, but where the employer is seeking such fees, it must show that the action brought by the plaintiff was frivolous

• Prohibition of nondisclosure agreements in settlement agreements relating to facts and circumstances underlying discrimination claims, unless the complainant prefers confidentiality

• Prohibition of mandatory pre-dispute arbitration for discrimination claims

Effective January 1, 2020, any provision in an employment agreement that prohibits an employee's ability to disclose factual information related to future claims of discrimination will be void and unenforceable unless the agreement informs the employee or prospective employee that such provision does not prohibit the employee from speaking with law enforcement, government agencies, and attorneys.

Effective February 8, 2020, all private employers, regardless of size, may be liable for violations of the New York State Human Rights Law.

Effective August 12, 2020, the statute of limitations for filing sexual harassment claims will extend from one year to three years.

In light of these new provisions, all employers in New York State should review their current policies and practices.

For more information about your organization's compliance with the law, please contact Laura L. Spring, Esq.