NYS Updates Employment Harassment and Discrimination Laws

By Hubert Plummer posted 06-26-2019 08:19 PM


A quick informational post.

The New York State Senate and Assembly have passed legislation that will amend the NYS Human Rights Law. [i]  It is expected to be signed by Governor Cuomo and will go into effect as soon as he signs.

The amendments will do the following:

  • Independent contractors and domestic workers will now be protected under the law for all forms of discrimination and harassment, not just sexual harassment. In other words, independent contractors and domestic workers will be treated the same as employees.
  • It changes the definition of “employer” to include “all employers within the state, including the state and all political subdivisions thereof”. It also adds a new definition of “private employer” to include “any person, company, corporation, labor organization or association”.  It also eliminates the old provision that the anti-discrimination and harassment laws only applied to employers with more than 4 employees.
  • A single incident of harassment can be actionable. It no longer has to be shown that the harassment was “severe or persuasive”.
  • Previously an individual had to make a complaint to the employer first. Under two US Supreme Court cases[ii], it was held that even if an employee was the subject of harassment, if no adverse employment action was taken (such as firing or demoting), and the employer was taking reasonable care to prevent the harassment, if the employee did not take advantage of opportunities offered by the employer that was an affirmative defense against the claim of discrimination. New York City has previously rejected this doctrine[iii] and now New York State has joined the city in rejecting that line of reasoning.
  • Mandatory arbitration clauses in employment agreements for all forms of discrimination and harassment will be prohibited. There is some question if this will conflict with federal law.
  • Employers will be prohibited from requiring non-disclosure agreements in any settlements.
  • Attorneys’ fees and uncapped punitive damages will be available to plaintiffs.
  • The statute of limitations for filing sexual harassment administrative charges will be increased to three years.

Many of these changes bring the State laws into alignment with New York City’s anti-harassment and discrimination laws and makes them some of the strongest protections for workers in the country.

[i] https://nyassembly.gov/leg/?bn=A08421&term=2019

[ii] https://www.law.cornell.edu/supct/html/97-282.ZO.html; https://www.law.cornell.edu/supremecourt/text/97-569

[iii] https://www.law.cornell.edu/nyctap/I10_0081.htm; https://www1.nyc.gov/site/cchr/law/chapter-1.page#8-107

The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.