By: Mengxin Esther Cui
On June 19, 2019, the NY state Assembly and state Senate passed a bill that tackles workplace harassment. The New York business entities and employers must be prepared for the strengthened laws targeting harassment in the workplace. The bill amends several provisions of the New York Human Right Law (“NYHRL”), the General Obligations Law, the Civil Practice law and Rules, and the New York Labor Law. Below is a summary of the amendments.
- Applied to whom?
- Under current NY laws, the NYSHRL only applies to NY employers with four or more employers, however, under the amended law, the NYHRL will apply to the smallest employers. To note, this amendment will apply only to claims filed on or after the effective date.
- Say goodbye to “severe or pervasive” threshold
- Under precedent cases, the conduct claimed must be severe and pervasive in order to constitute unlawful harassment, which is a pretty high bar for the plaintiff. The amendments will eliminate the current standard for sex harassment claims – as well as harassment and retaliation claims alleging misconduct based on any protected characteristic.
- New Standard for Establishing Workplace Harassment
- Under the amended law, workplace harassment claims can be brought regardless of whether such harassment would be considered severe or pervasive, and it redefines “harassment” as “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment.”
- Eliminate “Faragher-Ellerth” defense
- In Faragher-Ellerth defense, Supreme Court ruled that when no tangible employment action is taken or when co-worker harassment is at issue, the employer could defend himself by showing the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, such as complaint and reporting. However, the amended law significantly weakens the defense by explicitly stating an employer can still be held liable for claims of harassment even if “the individual did not make a complaint about the harassment.”
- A New Affirmative Defense
- Despite the elimination of “Faragher-Ellerth” defense, the amendment provides employers with a new affirmative defense if the employer can establish that the alleged harassment does not rise above the level of “petty slights or trivial inconveniences.”
- Prohibition of Confidential Settlements and Mandatory Arbitration Agreements.
- The 2018 expansion of NY’s sexual harassment laws already prohibited the inclusion of non-disclosure clauses in settlement of sexual harassment claims, the current amendments expends this prohibition to any type of discrimination.
- Expansion of Sexual Harassment Training and Policy Requirements
- The new requires that at both the time of hire and at every annual sexual harassment training, employees must receive a notice containing a copy of the employer’s sexual harassment policy, as well as the information presented at the employer’s harassment prevention training (in English and in the primary language of the employee). This provision will take effect immediately upon enactment.
- The new harassment standard will go into effect 60 days after the Governor signs it into law. The employers should know that any harassing conduct will not be tolerated, and revise existing arbitration agreement, or any contract that requires confidentiality, and must pay attention to mandatory sexual harassment policy and training.
Please contact Mengxin (Esther) Cui at Mengxin.Cui@chugh.com, for more information.