New York State Expands its Workplace Harassment Laws (Again!)

On August 12, 2019, New York Governor, Andrew Cuomo signed a package of anti-discrimination and anti-harassment measures which were passed by the State Legislature in late June. The new legislation expands the applicability of New York Humans Rights Law to all employers. It also expands sexual harassment requirements, the definition of religious discrimination, and includes additional protections for domestic violence victims. These amendments will require employers to review their current policies and procedures as compliance with the state’s Human Rights Law will become more complex. The following information highlights the recent changes to the law and provides information for employers on how to comply.

What is New York Human Rights Law?

New York Human Rights Law prohibits unlawful discriminatory practices in employment based on an applicant’s, employee’s, or intern’s actual or perceived race (including traits historically associated with race, such as hair texture and protective hairstyles), color, creed, religion (including wearing attire, clothing or facial hair in accordance with the tenets of religion), sex (including pregnancy, childbirth or related medical conditions, and transgender status), gender identity or expression, familial status, national origin, physical or mental disability (including gender dysphoria and being a certified medical marijuana patient), genetic information (including predisposing genetic characteristics), age (18 and over), veteran status, military status, sexual orientation, marital status, certain arrest or conviction records, and domestic violence victim status.

New York Human Rights Law Will Apply to All New York Employers

Effective February 8, 2020, employers of all sizes will be considered covered under the New York Human Rights Law. Previously, except with respect to sexual harassment, only employers with four or more employees in New York were covered.

Claims of Discrimination and Harassment Will Become Easier to Prove

The amendments include several measures that will make it easier for employees to prove claims of harassment because the “severe or pervasive” standard has been stripped from the law. Previously, New York State law mirrored federal law and required that in order to state an actionable claim against an employer, an employee had to show that the alleged harassment was severe or pervasive. The new law, only requires an employee show that alleged harassment or retaliation rises above the level of “petty slights and trivial inconveniences.” The law also removes a defense commonly used by employers, that the employee never utilized the employer’s internal complaint procedure. This is known as the Faragher/Ellerth defense. Now, an employer’s liability for harassment will not be based on whether or not an individual made a complaint about the harassment to the employer. Lastly, employees claiming discrimination will no longer be required to show that they were treated less favorably than a comparator (i.e. an employee outside the relevant protected category).

These provisions of the law will take effect October 11, 2019 for claims accrued and filed on or after that date.

ADDITIONAL CHANGES TO THE HUMAN RIGHTS LAW INCLUDE THE FOLLOWING:

1. Liberal Interpretation of the Human Rights Law to Maximize Employer Compliance

Employers must be aware that the Human Rights Law will be construed liberally and exceptions to the law will be construed narrowly in order to deter employers from engaging in discriminatory conduct, even where this approach differs from what is required under federal law. This new standard for interpretation of the law goes into effect immediately for claims accrued and filed after August 12, 2019.

2. Expanded Protection for Agreements Related to Discrimination and Harassment

The amendments expand the reach of restrictions related to nondisclosure agreements and the use of mandatory arbitration clauses to all forms of discrimination and harassment. Previously, the restrictions related to NDAs and the use of mandatory arbitration only applied to claims for sexual harassment.

Nondisclosure agreements (NDAs) will be restricted for all discrimination cases. Going forward, the law will apply to all types of discrimination, harassment or retaliation claims, prohibiting employers from including NDAs in the use of settling any claims where the NDA would prevent the disclosure of the underlying facts and circumstances of the claim or action unless the condition of confidentiality is the complainant’s preference. The procedures for receiving agreement to an NDA must also be strictly followed. The complainant must have a full, non-waivable 21 days to consider the NDA clause before signing the document and a 7-day waiting period during which the employee may revoke agreement to the NDA after they sign. This change goes into effect October 11, 2019 for all claims settled on or after that date.
Employment Contract NDAs must include a carve-out, beginning on January 1, 2020. NDAs that are part of an employment contract and that limit the employee from disclosing information related to a future claim of discrimination must include an explicit carve-out providing that the employee or future employee is not prohibited from speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.
Mandatory arbitration clauses prohibition has been expanded. Last year, New York enacted legislation prohibiting mandatory arbitration of sexual harassment claims. This prohibition has now been expanded to include any discrimination or retaliation claim (not just sexual harassment). Exceptions may apply when an employer has a collective bargaining agreement (CBA) which requires arbitration for cases of discrimination and harassment and where the use of mandatory arbitration is not consistent with federal law. This change goes into effect October 11, 2019.

3. Employer Liability for Discrimination of Any Kind Against A Contractor

The amendments will protect contractors from other types of workplace discrimination and retaliation aside from sexual harassment. Employers may be held liable for non-employees including contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace. This change goes into effect October 11, 2019 for claims accrued and filed on or after that date.

4. Punitive Damages Will Be Available for Claimants

Punitive damages will become available as a remedy in discrimination, harassment, and retaliation lawsuits. This change goes into effect October 11, 2019 for claims accrued and filed on or after that date.

5. Attorney’s Fees May Be Awarded to the Prevailing Party

The law provides that a prevailing party (whether before a court or the Division of Human Rights) may be awarded attorney’s fees. If a prevailing employer seeks attorney’s fees, it must first show that the action brought by the plaintiff was frivolous (i.e. that it was filed or continued in bad faith as defined in the statute). This change goes into effect October 11, 2019 for claims accrued and filed after that date.

THE AMENDMENTS’ IMPACT ON THE EXISTING SEXUAL HARASSMENT LAW

These amendments also have an impact on the state’s sexual harassment law. There are two updates that are specific to sexual harassment.

1. Mandatory Distribution of a Written Anti-Harassment Policy

The state will require employers to provide New York-based employees with a notice, both at the time of hire and during annual sexual harassment prevention training, that contains both the employer’s sexual harassment prevention policy and the information presented at the employer’s sexual harassment prevention training program. Employers must provide this information both in English and in the language identified by each employee as the primary language of such employee. The state will publish model policies in languages other than English (depending on the prevalence of each language in the state). Employers are not required to provide their policy in another language if the state has not published a template in that language. This change goes into effect immediately. Currently, the model policy is still only available in English.

2. Employees Will Have More Time to File an Administrative Charge for Sexual HarassmentEmployees will have three years to bring an administrative claim of sexual harassment under state law, whether filing a claim with an administrative agency or in court. Previously, the applicable statute of limitations was one year in administrative agencies. This change goes into effect August 12, 2020 for claims filed after that date.

Next Steps

To comply with these changes, it is recommended that employers consider the following:

Employers, particularly those with less than four employees who are now covered, should review and update their employee handbook to include policies related to Equal Employment Opportunity and/or Non-Discrimination/Non-Harassment which covers all state protected classes. Employers with existing policies that contain language regarding the need for discrimination or harassment to be considered “severe and pervasive” should remove this verbiage from their policies.
Train managers and supervisors on protected classes, discrimination, and retaliation to ensure they are not making employment-based decisions related to recruiting, disciplinary action, termination, and performance management based on factors that are not job-related or consistent with business necessity.
Ensure there is a designated person within the organization to whom employees can bring complaints to if they believe they are being discriminated or retaliated against. Ensure that the person who is designated to receive discrimination, harassment, or retaliation complaints understands his or her obligation to investigate these claims and acts to ensure the discrimination, harassment, or retaliation stops.
Work with your labor attorney to develop, review, or update any NDAs, contract NDAs or arbitration agreements.
In addition to including a Sexual Harassment policy in your employee handbook, ensure that the policy is also distributed to attendees at the time of your training session and provide copies of presentation materials to all attendees. For employers conducting training via electronic means, such as through a Learning Management System (LMS), work with your LMS provider to upload a copy of your organization’s Sexual Harassment policy to be distributed upon completion of the training module. Employers will also need to ensure that employees are able to download and/or print a copy of the Sexual Harassment policy and LMS study guide. If your LMS does not provide the functionality to upload your organization’s policy, it is recommended that a copy of the policy is attached when emailing the LMS login credentials to employees.

EXPANDED DEFINITION OF RELIGIOUS DISCRIMINATION TO INCLUDE APPEARANCE

The amendments to the New York Human Rights Law also includes an expanded definition of religious discrimination which will include the wearing of attire, clothing, or facial hair in accordance with the tenets of religion.

Details of the Law

The expanded definition of religion under the Human Rights Law would prohibit employment discrimination based on attire, clothing, or facial hair worn as a form of religious observance. More specifically, employers are prohibited from imposing as a condition of employment any terms or conditions that would require a person to violate or forego a sincerely held religious belief unless doing so causes an undue hardship.

This law takes effect October 8, 2019.

Next Steps

To comply with this law, it is recommended that employers:

Review and update any dress codes, grooming policies, and general hiring and employment practices that place restrictions on attire, hair styles, and facial hair that may be associated with religion. Ensure that policy language permits an employee to request a reasonable accommodation and details the process for how to request an accommodation.
Consider whether your organization may need to implement or update your workplace diversity training.
Develop procedures for conducting an analysis of requests for religious accommodations before ascertaining an undue hardship.

ADDITIONAL PROTECTIONS FOR DOMESTIC VIOLENCE VICTIMS

In addition to the expanded protections against discrimination, harassment, and religion, the amendments also provide additional protections for domestic violence victims which requires employers to provide reasonable accommodations to domestic violence victims who must be absent from work for certain specified reasons.

Details of the Law

Employers must allow an employee to have reasonable time off for the following reasons:

To seek medical attention for injuries caused by domestic violence;
To obtain services from a domestic violence shelter, program, or rape crisis center;
To obtain psychological counseling related to an incident of domestic violence;
To participate in safety planning or to take other actions to increase safety from future incidents of domestic violence; or
To obtain legal services, assist in the prosecution of the offense, or appear in court in relation to the incident of domestic violence.

Employers will be required to provide an accommodation unless the employee’s absence would constitute an undue hardship to the employer. The employer may charge the time off given as an accommodation to any paid time off that the employee has available; if no paid time off is available, the time off may be provided without pay.

Employers may request that victims of domestic violence who must be absent from work provide advance notice of the need for time off. If advance notice is not feasible, the employee must provide a certification to the employer within a reasonable time after the absence, such as a police report, court order, or documentation from a medical professional, advocate, or counselor.

The new law takes effect November 18, 2019.

Next Steps

Employers should take steps to prepare to comply by:

Employers who currently do not have a policy related to accommodations for domestic violence may wish to consider including a policy in their employee handbook which notifies employees of their rights to request an accommodation and outlines how an employee may request an accommodation.
Train managers and supervisors on handling reasonable accommodation requests from victims of domestic violence.

HR Works Can Help

HR Works offers an Employee Handbook Service which allows clients to work with a Compliance Specialist on the development of an employee handbook that complies with federal and state law.

HR Works also offers sexual harassment training which meets the state’s training requirements. In person, webinar based, and LMS options are available.

Subscribers of the HR Works Virtual Helpline may also contact a Compliance Specialist for questions related to discrimination, harassment, reasonable accommodations, or for information on how to investigate claims of discrimination, harassment, or retaliation. Helpline subscribers will also receive a Domestic Violence Accommodation policy as well as updates to policies impacted by the state’s list of state protected classes as part of the 2020 handbook updates.

Employers who do not subscribe to the Helpline and would like more information on employee handbooks, sexual harassment training, or our Helpline Service may contact the Virtual Helpline at 585-381-8340 Opt. 1 or via email at Helpline@hrworks-inc.com for a referral to a HR Works Business Development team member.