In August, New York Governor Andrew Cuomo signed into law Senate Bill 506577 / Assembly Bill A8421, legislation aimed at providing stronger anti-harassment protections to the state’s workers. Specifically, the bill increases the liability a business faces when dealing with harassment and discrimination claims. Portions of the new law are already in effect and other portions take effect over the next few years.
Currently in Effect
The new bill requires that the existing New York State Human Rights Law be liberally construed and further, be construed independently from its federal counterpart. It is also expanded to cover all employers in the state, regardless of the number of people they employ. This means that how the courts now choose to interpret the statute will largely be in favor of employees and not be bound by precedent set at in the federal courts across the country (which tend to be more favorable to employers). Further, exemptions to the law must be construed narrowly “in order to maximize deterrence of discriminatory conduct.”
Training and human resources policies have also changed so that when employees are hired or receive their annual sexual harassment prevention training, they receive a document written in their primary language that contains the sexual harassment prevention policy and the relevant information presented during the training course.
The law has also updated the “severe and pervasive” standard for harassment claims, requiring instead that a complaint show that the employee was subject to "inferior terms, conditions, or privileges of employment because of the individual's membership in a protected category." The defense to this is if the employer can show that the conduct did not rise above the level of "petty slights or trivial inconveniences." Harassment must be a step beyond petty and inconvenient to be actionable, but it does not have to rise to the level of being severe.
Even if the employee does not take advantage of corrective opportunities before filing suit, he or she can still file a suit against the employer rather than facing a bar to the lawsuit in certain circumstances. Also, employers can no longer require mandatory arbitration in cases of discrimination and harassment. Employees also are not required to find a “comparator” or someone else who is similarly situated in order to establish their prima facie case for discrimination. Instead, the employee must show that he or she is a member of a protected class, that he/she was qualified for the position, that he or she faced an adverse employment action and that action occurred in a way that gives rise to an inference of discrimination. Further, the rights of contractors, vendors, and consultants, as well as their employees, who provide services in a workplace, can bring a claim against an employer.
Portions of the New Law Going Into Effect in the Future
Starting in January 2020, additional limitations on non-disclosure agreements will go into effect, specifically as those non-disclosure statements relate to claims of discrimination. Companies cannot use NDAs to stop someone from speaking with law enforcement or the Equal Employment Opportunity Commission, and others interested in preventing workplace discrimination and harassment.
Starting in August of 2020, the statute of limitations for sexual harassment claims that are filed with the New York State Division of Human rights will be extended to three years from the date of the alleged conduct. This will extend the claims period for claims filed with the state to match the statute of limitations for claims filed in court.
Finally, in 2022, the New York State Department of Labor and the New York State Division of Human Rights are to reevaluate and update their model sexual harassment prevention policy, which provides guidance to businesses throughout the state on how to word and implement these policies. They will also update their guidance document and continue to update these documents every four years.
The state of New York takes protecting employees from workplace harassment and discrimination seriously and this new law strengthens these protections and lowers the bar for employees to be able to sue their employers over unacceptable behavior. Now, even the smallest businesses are required to live up to these standards while the largest businesses must continue their efforts to try and create a reasonable workplace for all their employees.
The employment lawyers of Phillips & Associates can handle cases against both small and large businesses. We are have the experience and financial backing to take on even the largest employers to make sure that you get a fair hearing. For a free consultation, call the experienced New York discrimination and wrongful termination attorneys at Phillips & Associates today at (866) 229-9441.
At Phillips & Associates- We Level the Playing Field
Employees were, and for the most part still are, at a big disadvantage in the workplace. There is a dramatic power imbalance between employees and the companies for which they work. This power balance can intensify after experiencing sexual harassment or discrimination. The company/employer often hires a large law firm to represent it, while the employee may have just lost their job, have very little money and no one to help them understand their rights. At Phillips & Associates, we have the experience, staffing, and financial backing to keep the playing field level. People need to take a close look at the lawyer or law firm they want to hire and determine if that lawyer or firm has the funds, experience and the resources to properly litigate their case.
Phillips & Associates, one of the largest plaintiffs’ only employment law firms in New York. The firm handles cases involving sexual harassment and discrimination in the workplace including pregnancy, race, disability, religion, gender, and sexual orientation and other protected traits. Phillips & Associates also handles other areas of harassment at work such as retaliation and wrongful termination. Most recently Phillips & Associates was selected as one of the “10 Best Employment & Labor Law Firms in New York” by the American Institute of Legal Counsel.