Last week, the State Legislature passed bills which make dramatic changes to New York Human Rights Law. The next step is for Governor Cuomo to sign the Bills. This article summarizes what is in store for employers and employees.
The new legislation is an employee-friendly bill that expands existing laws, by providing new remedies for employees who are discriminated against based on race, gender, sexual orientation, or other protected categories. The legislation goes further than Federal law, by changing the minimal level of evidence necessary to prove a discrimination claim, extending discrimination protections to independent contractors, and limiting certain defenses available to employers.
Here are some of the significant changes, if Bill S6577/A8421 is signed into law:
1. All employers, not just those with four or more employees, will be subject to liability under the New York Human Rights Law, based on the expanded definition of “employer” under New York Executive Law §292(5).
2. The legislation extends protection against discriminatory practices to contractors, vendors, consultants, and others who may have been discriminated against in a particular workplace. (Section 296-d of NYHRL only extended protection to non-employees in the event of sexual harassment. This bill extends the protection for other forms of harassment and discrimination).
3. If, after a trial, an employer is deemed liable for employment discrimination, plaintiffs may recovery their attorney’s fees. Presently, employee/plaintiffs may only recover attorney's fees under Federal law.
4. Under this legislation, confidentiality or nondisclosure clauses in settlement agreements would be invalid, “unless the condition of confidentiality is the complainant’s preference.”
5. The legislation prohibits mandatory arbitration clauses to resolve any allegation or claim of discrimination.
6. The statute of limitations for all sexual harassment claims will be extended to three years.
7. The legislation changes the manner in which harassment/hostile work environment claims are proven. An employee or other person covered by NYHRL does not not to prove that the harassment was “severe and pervasive” in order to establish liability. Instead, the complainant must meet a lower standard of proof, including that he or she was subject to “inferior terms, conditions or privileges of employment” based on membership in a protected category (age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, opposing discrimination.
8. An employee's failure to follow the internal complaint procedure, will no longer be a full defense to a lawsuit alleging harassment.
9. The employer may raise a defense that the harassing conduct is so minor that it would be perceived as ‘petty slights or trivial inconveniences” by a “reasonable victim of discrimination.” This alters the common “reasonable person” standard, instead requiring that the conduct be viewed from the shoes of a "reasonable victim.”
10. Employer will be required to distribute a notice containing the employer’s sexual harassment prevention policy, and additional information presented at the annual sexual harassment training.
For more information:
Law Office of Laura Wong-Pan PLLC
845-218-1288.
© 2019 All rights reserved.
Attorney advertising.