New York's Anti-Discrimination Law Puts Pressure on Employers

On August 8, 2019, Governor Andrew Cuomo signed several changes to New York laws that affect employers and employees relating to sexual harassment and discrimination in employment.

Specifically, these changes in the law are supposed to provide increased protections for those in protected classes and special protections for employees who have been sexually harassed. Some of the added protections include the prohibition of required confidentiality provisions in settlement agreements related to the claims of discrimination; prohibition of mandatory arbitration clauses related to discrimination; and the mandatory requirement that employers provide employees with notice of their sexual harassment prevention training program in writing in English and in the employee's primary languages.

The new law also extends the time in which an employee must file an action for sexual harassment (statute of limitations) to three years. Before the new law, such actions had to be filed within one year. This change will take affect August 8, 2020.

Employers also must have and/or update a model sexual harassment prevention guidance document and sexual harassment prevention policy.

The training must be provided annually and upon hire.

As for eligibility, the definition of “employer” included that the employer must have at least four employees in order for it to be governed by the anti-discrimination laws. This all changes on February 8, 2020, when the definition of “employer” shall refer to anyone that employs even a single employee. This shall also include New York State (the largest employer in the State) and its political subdivisions, regardless of size. Additionally, the definition of “private employer” has been amended to include any person, company, corporation, or labor organization except the State or any subdivision or agency thereof.

The laws also expand the protections to non-employees. While non-employees like consultants, vendors and independent contractors had some protections against sexual harassment in a workplace, those non-employees will now have protections from all forms of unlawful discrimination in proven instances where an employer knew or should have known that the non-employee was subjected to unlawful discrimination and failed to take action.

What does this mean for employers? For starters, all prior severance and/or settlement agreements used on other employees should not be reused. Many small business owners tend to re-use agreements prepared by their attorneys on prior matters in order to save money. While that is never the preferred method, this is especially true in light of these recent changes in the law. Provisions in settlement and severance agreements that had been acceptable in the past including, but not limited to, confidentiality agreements, may not be lawful or enforceable now.

The requirement of sexual harassment training for employers with four or more employees currently exists, but starting February 8, 2020, all employers (even those with only one employee) must adhere to the sexual harassment training requirement.

Under the new laws, if an employee commences an action against an employer for discrimination, the burden of proof for harassment claims has been lowered, making it easier for an employee to prove their case. Specifically, any harassment or retaliation claims will be unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” Unlawful harassment will include any activity that “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.” Also important to note is that the affirmative defense offered by employers to avoid liability if the employee never made a workplace complaint is no longer available for sexual harassment claims, unless the harassment complained of, “does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty.”

Employers need to work with legal counsel to ensure that they are prepared for these new changes in the law.

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