New York continues to expand its protection of employees in the workplace with a series of laws significantly increasing the responsibilities and potential liability of New York employers.
The summer of 2019 has thus been a time of significant change at the State level. On August 12, 2019, Governor Andrew Cuomo signed legislation enacting sweeping expansions of the New York State Human Rights Law (HRL). The new legislation dramatically alters the standards under, and greatly expands the reach of, the HRL and imposes a host of new requirements on New York employers. Gov. Cuomo this summer also signed into law four additional bills regarding salary inequality, retaliation against workers based on immigration status, and race-based hair discrimination.
Sweeping Changes to New York’s Harassment and Discrimination Laws
A. Elimination of the “Severe or Pervasive” Standard for Harassment Claims
Plaintiffs asserting a hostile work environment claim (based on any protected category) under the HRL have long been required to establish that the harassment was sufficiently “severe or pervasive” that it altered the conditions of his or her employment, just as they do under the federal anti-discrimination law, Title VII. No more. Beginning October 11, 2019, the “severe or pervasive” standard will be eliminated from New York State law, and plaintiffs will need only meet the much lower standard of demonstrating that the alleged harassment rises above the level of “petty slights and trivial inconveniences.” With this change, the State’s HRL standard of proof is now similar to that of the New York City Human Rights Law.
B. Expansion of the New York State Human Rights Law to All Employers and All Non-Employee Workers
Currently, the HRL applies only to employers with four or more employees (other than the sexual harassment provisions of the law, which apply regardless of employer size). Beginning February 8, 2020, the HRL will cover all employers, regardless of size.
Last year, New York extended the protections for employees against sexual harassment to also include protections for contractors, subcontractors, vendors, consultants, and other individuals providing services in an employer’s New York State workplaces. As of October 11, 2019, the expanded reach of the HRL will provide protection against all forms of discrimination or harassment covered by the HRL to these same non-employee workers who are performing work in a covered employer’s New York offices.
The new legislation also directs that the HRL is to be construed liberally, regardless of any applicable federal civil rights law or interpretation of similar language in a federal civil rights law. Similarly, any exceptions and exemptions from the HRL are to be construed narrowly in order to maximize deterrence of discriminatory conduct.
C. Limitation of Employers’ Defenses to Harassment
Also beginning on October 11, 2019, employers will no longer be able to rely upon the Faragher/Ellerth affirmative defense to New York State law sexual harassment claims arising from a hostile work environment by a supervisory employee. This defense, established by the U.S. Supreme Court in 1998, permits an employer to raise as an affirmative defense that: (i) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, such as by adopting and educating employees about policies prohibiting harassment and establishing a complaint reporting procedure, and (ii) the plaintiff unreasonably failed to take advantage of the employer’s preventative or corrective measures. This defense has long served as an important protection for employers unaware of harassment because it was unreported. The new legislation, however, specifically provides that a worker’s failure to “make a complaint about the harassment to [the] employer ... shall not be determinative of whether such employer ... shall be liable.”
In addition, plaintiffs claiming discrimination under the HRL will no longer need to demonstrate they were treated less favorably than a “comparator,” i.e., a similarly situated employee outside the plaintiff’s protected category.
D. Incentive for Employees to Bring Claims
Effective immediately, any plaintiff who prevails on an HRL claim will be awarded attorneys’ fees. Employers are also eligible to recoup their attorneys’ fees if they are the prevailing party, but only if they can establish that the action was frivolous.
Beginning October 11, 2019, all plaintiffs will be permitted to seek punitive damages in addition to compensatory damages as remedies for discrimination, harassment and retaliation claims under the HRL.
Finally, beginning August 12, 2020, the statute of limitations for employees to file a claim of sexual harassment with the New York Division of Human Rights will be increased from one year to three years.
E. Additional Notification and Training Requirements for New York Employers
Effective immediately, employers must provide their New York employees with a copy of their sexual harassment prevention policies and the information presented at their sexual harassment training programs upon hire and at every annual sexual harassment training session thereafter. Specifically, employers must provide this information both in English and in the employee’s primary language, if the State issues a model policy in that language.
F. Expanding Restrictions on Nondisclosure Agreements and the Ban on Mandatory Arbitration Agreements for Employment Discrimination Claims
Last year, New York State imposed restrictions on nondisclosure provisions in agreements settling sexual harassment claims by requiring protective measures to ensure that confidentiality was the complainant’s preference. Effective October 11, 2019, these same restrictions will be applicable to settlement agreements covering any claim of discrimination, harassment, and/or retaliation under the HRL, not just sexual harassment. If confidentiality is the complainant’s preference, then a nondisclosure provision covering the facts and circumstances of the claim is permissible, but such provision must be written in “plain English, and, if applicable, the primary language of the complainant.” The complainant must then have a full, non-waivable 21 days to consider the nondisclosure provision before executing the agreement and a 7-day waiting period during which the complainant may revoke the nondisclosure provision.
Also effective October 11, 2019, New York State’s current ban on mandatory arbitration provisions covering claims of sexual harassment will be expanded to prohibit mandatory arbitration of all claims of discrimination or harassment. This law’s enforceability, however, will be vulnerable to challenge in light of the recent decision by the U.S. District Court for the Southern District of New York holding that New York’s law barring mandatory agreements to arbitrate sexual harassment claims is preempted by the Federal Arbitration Act.
In addition, beginning January 1, 2020, nondisclosure agreements that limit employees from disclosing information related to a future claim of discrimination or harassment must include an explicit carve-out explaining that the 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.”
Addressing Pay Inequity
In addition to the laws amending the HRL, Gov. Cuomo also signed into law on July 10, 2019, two bills amending the New York Labor Law with respect to equal pay.
Beginning October 8, 2019, New York State’s “equal pay law,” which was passed to prevent gender-based pay inequity, will be expanded to prohibit pay differentials “for substantially similar work” based on a person’s membership in any other protected class, including age, race, sexual orientation and disability. Plaintiffs asserting wage discrimination claims will also be faced with a lower burden of proof—they will no longer be required to demonstrate “equal” work. In addition, successful plaintiffs may receive a potential higher recovery, with treble damages available for violations of the law. Under the new legislation, pay differentials for substantially similar work will be permitted only when based on a seniority system, a methodology measuring earnings by quantity or quality, or a bona fide reason other than the individual’s membership in a protected class.
Beginning January 6, 2020, New York State, following in the footsteps of New York City and Albany, Suffolk and Westchester counties, will also institute a statewide ban on salary history inquiries. New York employers will be prohibited from asking applicants and employees about their compensation history or relying on that history in setting salaries. Unlike the salary history inquiry bans currently in effect in certain parts of the State, however, the Statewide ban will apply to applicants and to current employees who seek a new position (such as a promotion or transfer) within the same company.
Preventing Retaliation against Workers Based on Immigration Status
On July 27, 2019, Gov. Cuomo signed into law an amendment to Section 215 of the New York Labor Law, which expressly prohibits New York employers from firing, threatening, penalizing or otherwise discriminating against workers who report or blow the whistle on their employer’s violations of wage and hour laws based on the workers’ suspected or actual citizenship or immigration status. Such prohibited retaliatory conduct includes contacting or threatening to contact U.S. immigration authorities. This law will take effect October 25, 2019.
Expanding Race Discrimination to Cover Hair
On July 12, 2019, Gov. Cuomo signed into law an amendment to the New York State Executive Law’s definition of “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles,” such as “braids, locks and twists.” This law aims to have a similar impact to the guidance published earlier this year by the New York City Commission on Human Rights, which stated that bans or restrictions on natural hair and hairstyles associated with Black people constitute race discrimination under the New York City Human Rights Law. This law is effective immediately.
Next Steps for Employers
The expanded coverage of these new laws touches any employer with at least one employee in New York State. New York employers must review and revise their anti-discrimination and anti-harassment policies to account for these expanded protections and lowered standards, and ensure that copies of the requisite sexual harassment prevention policies are timely distributed. Employers with employees in New York State must also review and revise their non-disclosure agreements to include the required carveout and ensure that all separation and settlement agreements follow the required procedures for enforceable confidentiality provisions.
Employers with employees in New York must also ensure that their hiring procedures in New York do not include any inquiry into prior compensation. Human Resources personnel should be alerted to the ban on questions concerning salary history, and any candidate questionnaire forms should be modified to eliminate any reference to compensation history. In addition, employers should be careful to ensure that all wages are set without regard to an employee’s gender or any other protected trait.
Finally, employers with employees in New York should review their employee grooming policies to exclude any references prohibiting specific types of traditional hairstyles; policies should instead simply require general neatness.
The authors would like to thank summer associate Caroline Block for her contribution to this alert.