New York State continues to lead the charge in enacting expansive discrimination protections for employees. In its latest move, the State passed a law which the Governor signed extending broad anti-harassment protections to employees of all New York State employers. It had already made this move with regard to sexual harassment protections earlier in the year. The new law prohibits “unlawful discriminatory practices,” defined as harassment based on an individual’s “age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.” The law also prohibits retaliation against anyone asserting these rights, and makes several additional major changes:
- To prevail on a claim of harassment, the employee does not have to show the harassment was severe or pervasive. This is the federal standard and now no longer a required showing in New York.
- An employee’s failure to complain to the employer no longer shields the employer from liability. Under the federal standard, there is an affirmative defense which allows an employer to avoid liability by showing it had a complaint mechanism in place and the employee failed to use it. This defense will no longer fly in New York.
- Anti-harassment protections are also extended to non-employees. This includes contractors, subcontractors, vendors, consultants, etc. Before now, only protection from sexual harassment was afforded to non-employees.
- Reasonable attorneys’ fees must be awarded to the plaintiff alleging harassment if he or she prevails. However, if the employer prevails, it must show the case was frivolous to recover fees. This is an incredibly high bar.
- Non-disclosure agreements are prohibited in settlements and agreements waiving discrimination claims unless it is the complainant’s choice. Even if it is the complainant’s choice, the complainant must have 21 days to consider the provision in writing. After the 21 days is up, the complainant’s preference must be put in writing and the complainant has 7 more days to revoke consent even after the agreement is signed.
- Upon hire and at every annual sexual harassment training, the employer must provide a notice containing the employer’s sexual harassment prevention policy and the information presented in the training program.
For employers in New York, this law will have little impact on the day to day operations beyond training managers on the new requirements. However, for an employer who receives a complaint, the impact is huge. Since there is no requirement an employee use the company’s internal complaint process, the first time a company learns about an employee’s harassment complaint may be when it receives an administrative charge from a state, local, or federal agency. Justification for such a result is hard to understand.
Additionally, it is a low bar for an employee to prove harassment since the conduct does not have to be severe or pervasive. This means one comment may be enough for the company to be liable. Unfortunately, employers in New York are going to continue to walk on egg shells and the slightest movement will break the eggs!
Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
Additionally, if this article generated any additional questions for you, please contact us at info@brodyandassociates.com. We may address your question in a future blog post.
