Employers with facilities in New York are probably aware of the significant piece of anti-discrimination legislation Gov. Cuomo signed recently. The new law:

  • expands coverage to all employers regardless of size;woman in conference room
  • expands protections against discrimination to certain non-employees;
  • increases the statute of limitations for sexual harassment claims from one to three years;
  • adds punitive damages and mandatory attorneys’ fees as potential remedies;
  • prohibits mandatory arbitration of discrimination claims;
  • adds to the notice requirements an employer must provide regarding its sexual harassment policy, including in the language identified by any employee as their primary language; and
  • places significant specific restrictions upon the use of non-disclosure agreements

While these changes are certainly significant, the more troubling aspect of the law for employers and their counsel may be its expansive definition of sexual harassment as well as its open dismissiveness of federal law.

Definition of sexual harassment

For example, the law expressly replaces the decades-old definition requiring that such harassment be “severe and pervasive” with:

“Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories.”

Although the severe and pervasive standard found its genesis in federal law, it has been applied to state laws around the country, including New York. Similarly, the new law eliminates the Farragher/Ellerth defense which is available under federal law when an employee fails to complain and adds an affirmative defense that further emphasizes the low threshold for harassment claims:

“The fact that such individual did not make a complaint about the harassment to such employer, licensing agency, employment agency or labor organization shall not be determinative of whether such employer, licensing agency, employment agency or labor organization shall be liable…It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”

Federal law inadequacies

The New York legislature made it clear that an underlying purpose of this legislation was in response to what it perceived to be inadequate protections at the federal level by stating:

“The provisions of this article shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed.”

Some may minimize the significance of this legislation and simply put it in the category of another New York aberration. Doing so, however, ignores the impact of the #metoo movement, as well as the current political climate, in various jurisdictions across the United States. To the extent there is a concern, rightly or wrongly, that federal protections against discrimination generally, and harassment specifically, are being rolled back, we can anticipate that other states and cities will follow New York’s example. Indeed, Miriam Clark, president of National Employment Lawyers Association/New York offered this reaction to the new law:

“We are proud that with this legislation New York sets a national standard for the rights of workers to discrimination-free workplaces.”

Takeaways

Employers with operations in New York should familiarize themselves with this new legislation and take the necessary steps to bring their policies into compliance. Those without a New York presence should keep their eyes on the horizon for future changes in the jurisdictions in which they operate.