Written by: Jacqueline Voronov, Esq.

The #TimesUp and #MeToo movements just bagged MAJOR wins in New York on Wednesday when state lawmakers passed sweeping anti-harassment legislation that will lower the bar for what qualifies as sexual harassment, among other things.  These changes build on a slate of laws that Gov. Cuomo signed last year amid the peak of the #MeToo movement that banned most nondisclosure agreements and mandatory arbitration for complaints, and required government employees found responsible for harassment to refund any taxpayer-financed payouts.

Complainants Will Now Have a MUCH Lower Burden of Proof

Perhaps the most impactful aspect of the new law is the elimination of the state’s long-standing “severe or pervasive” standard from discriminatory and retaliatory sexual harassment cases, which has allowed courts and administrative agencies to dismiss employee claims of inappropriate or isolated comments or even groping as insufficiently hostile. Harassment defense attorneys for workplace harassment should anticipate an increase in complaints because of the removal of this provision.

Going forward, harassment on the basis of any protected characteristic[1] will be unlawful “regardless of whether such harassment would be considered severe or pervasive.”  Instead, the legislation provides that “discriminatory or retaliatory harassment constitutes an unlawful discriminatory practice under this subdivision unless the defendant pleads and proves that the harassing conduct does not rise above the level of petty slights or trivial inconveniences.”

While it is not certain that the new law will necessarily lead to more lawsuits, the legislation has every harassment defense attorney for workplace harassment paying close attention and what IS clear is that this new lower standard will undoubtedly increase the probability of success for plaintiffs and foreclose many defendants from obtaining summary judgment.

Employers Lose One Of Their Strongest Defenses- The Faragher/Ellerth Defense

State law currently allows what’s called the Faragher-Ellerth defense, which is commonly used by employers to dismiss claims of workplace sexual harassment. The defense was created from two different U.S. Supreme Court decisions that found an employer may not be liable for sexual harassment if it can show the employee didn’t follow the employer’s policy for addressing inappropriate behavior, take the directed steps during an investigation, or comply with other standards established by that procedure.

Under the new law, employees will be permitted to bring sexual harassment claims notwithstanding any failure to follow their employer’s reporting procedure. What that means for a harassment defense attorney for workplace harassment is that they must guide employers to understand that they can’t rely on the Faragher-Ellerth defense as heavily as they could in the past.

So Long Mandatory Arbitration

Last year, New York enacted legislation prohibiting mandatory arbitration of sexual harassment claims. This prohibition has now been expanded to any discrimination or retaliation claim (not just sexual harassment), and employers and harassment defense attorneys for workplace harassment should anticipate an increase in complaints as employees are incentivized to file lawsuits more readily. This change goes into effect 60 days after enactment, although it is still expected to be preempted by federal law.

Other important takeaways from the new bill are as follows:

  • New York Employers May be Held Liable for Discrimination of Any Kind Against a Contractor. The law has been expanded to protect contractors from all types of workplace discrimination and retaliation: “[a]n employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”
  • Punitive Damages Will be Available. Punitive damages will become available as a remedy in discrimination, harassment and retaliation lawsuits under state law. A harassment defense attorney for workplace harassment should counsel clients about the risk of increased costs associated with this provision.
  • Attorney Fees “Shall” be Awarded to the Prevailing Party. New York Human Rights Law now provides that a prevailing party (whether before a court or the Division of Human Rights) “shall” be awarded attorneys’ fees, rather than the award being discretionary. If a prevailing employer seeks attorneys’ fees, it must first show that the action brought by the plaintiff was filed or continued in bad faith as defined in the statute.
  • Nondisclosure Agreements (NDAs) Restricted for All Discrimination Cases. New York sharply limited NDAs in sexual harassment cases last year by requiring protective measures to ensure that confidentiality was the complainant’s preference, and a harassment defense attorney for workplace harassment must take this into account when developing litigation strategy. Going forward, the law will apply to all types of discrimination, harassment or retaliation claims, prohibiting employers from including NDAs in “any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.” If confidentiality is the complainant’s preference, then an NDA regarding the facts and circumstances of the claim is permissible, but must be written in “plain English, and, if applicable, the primary language of the complainant.” The complainant then must have a full, non-waivable 21 days to consider the NDA clause before signing the document and a 7-day waiting period during which the employee may revoke agreement to the NDA after they sign.
  • Employment Contract NDAs Must Include a Carve-Out. Commencing January 1, 2020, NDAs that are part of an employment contract must include an explicit carve-out providing that the employee or future employee is not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”
  • Mandatory Distribution of a Written Policy. The state will require employers to provide New York-based employees with a notice, both at the time of hire and during annual sexual harassment prevention training that contains both the employer’s sexual harassment prevention policy and the information presented at such employer’s prevention training program. Employers must provide this information both in English and in the language identified by each employee as the primary language of such employee. A savvy harassment defense attorney for workplace harassment will work with each client to ensure that their current anti-harassment policies, training and procedures for investigating complaints are comprehensive and reflective of emerging litigation trends.
  • The Statute of Limitations for Sexual Harassment Claim is Now Three Years Employees will have three years to bring an administrative claim of sexual harassment, whether filing in an administrative agency or in court. Previously, the applicable statute of limitations was one year in administrative agencies; discrimination claims other than sexual harassment are still subject to a one-year statute of limitations when filed in administrative agencies.

As this new law will have a significant impact on employment contracts/agreements, handbooks, workplace policies, training materials, arbitration agreements, and settlements, employers are strongly encouraged to contact the experienced harassment defense attorneys for workplace harassment in Hall Booth Smith P.C.’s Labor and Employment Department to answer any questions you may have on compliance with this new law or any other employment law issues.

[1] Although the new law has been widely publicized as focusing on sexual harassment claims, the actual legislation will affect harassment, discrimination and retaliation claims of all kinds as well as employer compliance programs across the board.

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