Expansive Changes Proposed for the New York State Human Rights Law

On June 19, 2019, the New York State Legislature passed Senate Bill S.6577, which would expand the scope of employee protections provided by the New York State Human Rights Law (“NYSHRL”), therefore exposing employers to greater potential liability. The bill is expected to be signed by Governor Cuomo and includes the following changes:

Expanded Definition of Employer
180 days after enactment, the NYSHRL would apply to ALL New York State employers, not just to employers with four or more employees.

Removing the “Severe and Pervasive” Standard
Under the new law, the “severe and pervasive” standard would no longer be applicable to hostile work environment claims. It will be an unlawful discriminatory practice for an employer to subject an employee to harassment based on the individual’s membership in any protected class, or because the individual has opposed any harassment claim or participated in a harassment proceeding, “regardless of whether the harassment would be considered severe or pervasive under precedent applied to harassment claims.” This change will comport New York law with the current standard under the New York City Human Rights Law (“NYCHRL”) and would go into effect 60 days after enactment.

Eliminating the Defense that Employee Did Not Follow Internal Procedures
Employers will be liable for harassment even if the employee did not utilize the employer-provided complaint procedure to address such issues. This eliminates what is known as the “Farragher/Ellerth” defense of allowing an employee’s failure to utilize their employer’s internal complaint procedures. Unlike under New York City law, this defense will not mitigate damages under state law.

Expanded Sexual Harassment Policy Requirements
Every employer in New York would be required to provide employees with a notice containing the employer’s sexual harassment prevention policy at the time of hiring and at every annual sexual harassment training. The notice also must reiterate the information presented at the employer-provided sexual harassment training program in both English and each employee’s primary language. This augments the requirements of the mandatory sexual harassment training that was enacted by the state in 2018.

Statute of Limitations Extended to Three Years for Sexual Harassment Claims
The legislation extends the statute of limitations in sexual harassment claims from one year to three years from the date of alleged discriminatory practice. This mirrors the change made under New York City law in 2018. This provision becomes effective one year after enactment.

Expanded Non-Disclosure Agreement Prohibition
Effective 60 days after enactment, the legislation would expand the 2018 prohibition on non-disclosure agreements (NDA) in sexual harassment settlements to apply to all discrimination and harassment claims, unless the condition of confidentiality is the preference of the complainant.

In order to be deemed the “preference of the complainant,” any term or condition regarding nondisclosure would need to be provided in writing to all parties “in plain English” and, if applicable, the primary language of the complainant. Further, as is presently required for confidentiality clauses involving claims of sexual harassment, the complainant would need to be provided with 21 days to consider the nondisclosure term or condition and, if after 21 days the term or condition is the complainant’s preference, it would need to be memorialized in an agreement signed by all parties, following which the complainant would have seven days to revoke their signature.

The bill also provides that any provision in a contract or other agreement entered into on or after January 1, 2020 that prevents the disclosure of factual information related to any future claim of discrimination would be void and unenforceable unless the provision notifies the employee or applicant that it does not prohibit them 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 applicant.

Expanded Arbitration Clause Prohibition
The legislation would expand the 2018 prohibition against mandatory arbitration clauses in sexual harassment settlements to apply to all discrimination claims. This becomes effective 60 days after enactment.

Expanded Protections for Domestic Workers and Non-Employees
Domestic workers and non-employees, including contractors, subcontractors, vendors, consultants, or other persons providing services pursuant to a contract would receive the same protections against sexual and other forms of harassment as employees. These provisions become effective 60 days after the Governor signs the bill.

Punitive Damages and Attorney’s Fees for Employment Discrimination
The law would allow courts to award punitive damages in all cases of claims of employment discrimination involving private employers. It would require courts to award reasonable attorney’s fees in all employment discrimination claims to any prevailing party. This provision is effective 60 days after the bills are signed by the Governor.

Attorney General Prosecution of Harassment Claims
The statute requires the state Attorney General’s Office to prosecute all discrimination claims where requested by the DOL Commissioner. The Attorney General’s Office also must prosecute all criminal claims based on discrimination where, in the Attorney General’s judgment, the local District Attorney cannot effectively carry out the prosecution or has erroneously failed or refused to prosecute the crime.

Expanded Liberal Construction of the NYSHRL
The NYSHRL construction provision will soon read almost exactly the same as the more expansive New York City Human Rights Law. The new NYSHRL provides that exemptions and exceptions to the NYSHRL provisions must be “construed narrowly in order to maximize deterrence of discriminatory conduct.” The NYSHRL now must be interpreted independently of similar federal civil rights laws, such as Title VII, and other laws with comparable language.