Legal Alert: New York Changes to Sexual Harassment and Discrimination Prevention Laws



In the past few months, New York has made several changes to laws intended to prevent harassment and discrimination in the workplace. These changes come on the heels of last year’s law that required New York employers to expand their sexual harassment prevention policies and provide annual sexual harassment prevention training.

Below is a summary of many of the new laws listed by implementation date, as well as a reminder about legal requirements already in effect. If you have questions about any of the information in this legal alert, please contact Pro Bono Partnership at 914-328-0674.

REMINDER

New York law now requires all employers to provide annual sexual harassment prevention training for employees. The deadline for completing the first year’s training requirement is October 9, 2019. New York State has created a training that can be used by all employers.

NEW LAWS FOR NEW YORK EMPLOYERS

Effective Immediately:

  • Discrimination based on hair is prohibited.  Employers may not discriminate based on traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.
  • Distribution of sexual harassment prevention information.  Employers are required to provide employees with a notice containing the employer’s sexual harassment prevention policy and “the information presented at the employer’s training program.” The notice must be provided at hire and at every annual sexual harassment training thereafter.  It must be provided in English and in the language identified by each employee as the primary language of that employee.

Effective October 8, 2019:

  • Expanded prohibitions on pay disparity. Under the New York Labor Law, employers will now be prohibited from paying different wages for substantially similar work based on an employee’s membership in a protected class. Previously, the law only prohibited pay disparity based on gender. The new law also lowers the legal standard needed to show pay disparity in litigation. Previously, the law prohibited paying employees of the opposite sex differently for “equal work.” The new law will not require a showing of equal work. Instead, it prohibits disparate pay based on “substantially similar work, when viewed as a composite of skill, effort, and responsibility and performed under similar working conditions.”

Effective October 11, 2019:

  • “Severe or pervasive” is no longer the legal standard for employer liability in workplace harassment claims.  Prior to this change, an employee who brought a legal claim against their employer alleging workplace harassment would need to show that such harassment was “severe or pervasive” in order for the employer to be legally liable.  This legal standard is now changing.  A complainant will only need to show that they were subjected to “inferior terms, conditions or privileges of employment” because of the individual’s membership in one or more of the protected categories under New York law.  However, an employer will have a defense if they can show that the conduct in question did not rise above “petty slights or trivial inconveniences.”
  • No “internal complaint” defense for employers.  Previously, an employer could defend itself against a discrimination or harassment claim on the grounds that the employee complainant did not follow the employer’s own internal reporting process for such incidents before filing a claim.  Going forward, this “internal complaint” defense will no longer be available to employers who are sued for violations of New York State’s anti-harassment and/or anti-discrimination laws.
  • Expanded discrimination protections for non-employees.  The new law extends protections against discrimination to certain non-employees who fall within one or more of the protected categories under the New York State Human Rights Law.  Covered non-employees include contractors, subcontractors, vendors, consultants, or other persons providing services pursuant to a contract. Previously, these types of non-employees were only protected against sexual harassment.
  • No nondisclosure language in resolutions of discrimination claims. Going forward, employers are prohibited from including nondisclosure language in any agreement or resolution of a claim involving allegations of unlawful discrimination, unless the person making the claim would prefer to include such language in the agreement.
  • No mandatory pre-suit arbitration for discrimination claims. Until recently, employers could require mandatory pre-suit arbitration of discrimination and harassment claims by their employees.  Last year, New York amended its laws to prohibit mandatory pre-suit arbitration of sexual harassment claims, so long as such prohibition did not conflict with federal law. This new law now extends that prohibition further, so that employers may not require pre-suit arbitration of any discrimination claim, not just sexual harassment.
  • Uncapped punitive damages.  Under the new law, a litigant who successfully proves a claim of employment discrimination under the New York State Human Rights Law may be awarded uncapped punitive damages in addition to reasonable attorney’s fees.

Effective January 1, 2020:

  • No nondisclosure language regarding discrimination claims in contracts or agreements. Employers may not include provisions in a contract or agreement preventing the disclosure of information related to any future claim of discrimination on the basis of any protected characteristic, with some limited exceptions.

Effective February 8, 2020:

  • All employers will be subject to compliance with the anti-discrimination provisions of the New York State Human Rights Law (NYSHRL). Previously, very small employers (those that employed less than four people) were not required to comply with the NYSHRL.  The exception was the NYSHRL’s protections against sexual harassment, which apply to employers of all sizes. The definition of “employer” under the NYSHRL will expand to include all employers in New York for all types of workplace discrimination.

What Should You Do Now?

  • Ensure that your organization complies with the sexual harassment training requirements by October 9, 2019, and ensure that it complies with the new notice requirements related to such training.
  • Review your current harassment and discrimination policies to ensure that they reflect the changes to the law.
  • Train supervisors and employees on the changes in the standards for sexual harassment.
  • Ensure your organization does not use any standard agreements that include nondisclosure agreements for discrimination claims.
  • Conduct an audit of your organization’s pay practices to ensure they comply with the new standards under the New York Labor Law.
  • If your organization has not been subject to the New York anti-discrimination laws because it has fewer than four employees, draft policies to comply with these laws.