Updated: Jul 9, 2019
This June, New York passed a more robust Workplace Harassment Bill. The bill will provide for sweeping changes to New York’s existing laws on harassment and discrimination and it is expected that other states will follow course. Among other things, the bill amends New York State Human Rights Law (“NYSHRL”) to provide for the following:
- All Employers are covered by the new amended bill regardless of the number of employees.
- Elimination of the Severe and Pervasive Standard – previously employees had to prove that the alleged discriminatory or harassing conduct in question was severe and or pervasive; under the new bill complainant must show only that he or she was subjected to “inferior terms, conditions or privileges of employment because of the [complainant’s] membership in one or more of the [NYSHRL’s] protected categories,” and would not be required to point to a comparator (i.e., someone outside the complainant’s protected class who was treated more favorably) in order to prevail on a harassment claim. This expansion of the law allows for a complainant to bring a claim for discrimination and or harassment more readily.
- Elimination of the Faragher/Ellerth Defense – Employers will no longer be able to defend against NYSHRL harassment claims by asserting that the complainant unreasonably failed to utilize the employer’s internal complaint procedure.
- Extended Statute of Limitations – The Statute of Limitations has been expanded to three years versus one year. Complainants now have three years to file their complaint.
- Punitive Damages and Attorneys’ Fees. Under the new bill, complainants, if successful, may receive uncapped punitive damages awards in employment discrimination cases involving private employers. Attorneys’ fees are available whether the claim is filed in court or with the Division of Human Rights and appear to no longer be discretionary. However, a prevailing employer may only receive attorneys’ fees if it can demonstrate complainant’s action was frivolous (i.e., that the action was filed or continued in bad faith).
- Non-Employees/Interns/Contractors. Contractors, non-employees, interns, and vendors are protected from discrimination and harassment under the new bill.
What Should Employers do Immediately?
- Ensure that all appropriate anti-harassment trainings are in place and updated. Employers should be more proactive in preventing (and not just addressing) harassment in the workplace. Employers should consider implementing in-person anti-harassment training rather than online or off-the-shelf programs, and conducting manager-specific training for supervisory employees who play a key role in setting the tone and issue spotting.
- Update all existing policies and employment contracts to reflect the new bill. And, consider what new hire paperwork is distributed to all employees.