Just before the end of its session, the New York Legislature expanded protections against discrimination and harassment under the New York State Human Rights Law (NYSHRL).  The Governor still has to sign the new bill into law, but we expect that he will.  The expansion comes on the heels of last year’s signature legislative achievement focusing on sexual harassment prevention, namely in the form of mandatory training and revamped policy requirements.  This year’s changes align the law closer to, if not right next to, the more progressive New York City Human Rights Law (NYCHRL) and further away from federal laws, such as Title VII of the Civil Rights Act of 1964. 

The NYSHRL now makes it easier for individuals to assert and prove discrimination and harassment claims and obtain larger recoveries.  At the same time, litigating these claims, and keeping resolution of any such claims out of the public eye, have increased in difficulty.  These changes will force employers to redouble their efforts in creating and maintaining an environment without discrimination and harassment, while also prompting them to revisit how they evaluate the strength of discrimination claims, including applicable defenses.  (We note that this should not be a particularly great challenge for employers who are already covered under the similarly broad-based and employee-friendly NYCHRL.)

Below, and in order of appearance in the bill, we discuss the most significant changes to the law. 

1. Elimination of Employer Coverage Threshold.  The NYSHRL will now apply to all New York State employers regardless of their size.  Last year, the law eliminated the four-person threshold when pursing sexual harassment claims; this year, the threshold has been eliminated altogether.  This change, which will go into effect 180 days after the bill is signed into law, cannot be classified as a significant one given the already low four-person coverage threshold. 

2. Discriminatory Harassment is Now Codified into the Law.  As many legal technicians know, Title VII does not explicitly prohibit “harassment” in the workplace, but the Supreme Court – just a little over 30 years ago – interpreted unlawful discrimination to include harassment, including sexual harassment.  In other words, harassment is court-made law.  Now, New York is explicitly making “harassment” part of its anti-discrimination law.  More specifically, the law adds a newunlawful discriminatory practice that makes it illegal to subject any individual to harassment because of that individual’s membership in a protected class recognized under the law (e.g. race, sex, etc.), or because that individual has opposed an unlawful practice or because they have filed a complaint, or testified or otherwise assisted in any proceeding under the law.  This provision becomes effective 60 days after the new bill becomes law and will only apply to claims filed on or after that effective date. 

3. New Lower Standard for Proving Discriminatory Harassment Codified Into the Law.  The new law also explicitly sets forth a new lower standard of proof for harassment claims – a significant change in the law.  Before the passage of this new law, courts utilized the federal standard of proof, which required a plaintiff to demonstrate that the harassment was “severe or pervasive”.  Now plaintiffs may prevail if they instead demonstrate that the harassment subjected them to “inferior terms, conditions or privileges of employment” because of the plaintiff’s membership in a protected class.  Not only is this a significant shift away from the federal standard, but it sets forth a different standard than the “treated less well” standard utilized by the New York City Human Rights Law.  In fact, the new law notes that a plaintiff need not identify another individual to whom the employee’s treatment must be compared in proving their harassment claim.  This provision also becomes effective 60 days after the new bill becomes law and will apply to claims filed on or after that date.

4. The Faragher-Ellerth Defense is Eliminated.  The New York State Human Rights Law dispenses with the well-known Faragher-Ellerth affirmative defense (a defense developed by federal courts), whereby an employer may avoid liability: (i) where it attempted to prevent and correct the harassing conduct; and (ii) when the employee unreasonably failed to take advantage of preventative and corrective opportunities.  Now, in another significant change, employers will only avoid liability if they can prove that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination would consider petty slights or trivial inconveniences” – the same affirmative defense employers may use to prevail on a NYCHRL Law claim.  One difference between the two laws, however, is that while the NYCHRL likewise does not permit the use of the Faragher-Ellerth defense, it does include other statutory language permitting a reduction to punitive damage awards where an employer has attempted to detect and prevent harassing conduct through the use of appropriate policies and training.  The NYSHRL includes no such language.  This new affirmative defense modification will become effective 60 days after the new bill becomes law and will apply to claims filed on or after that date. 

5. Non-Employees May Recover Against Companies For Any Type of Discrimination.  Last year, lawmakers extended the New York State Human Rights Law’s protections against sexual harassment to non-employees, which includes contractors, subcontractors, vendors, consultants or any other person providing services under a contract in the workplace or who is an employee of the same.  Under the new law, non-employees may now pursue claims against a company for any discriminatory behavior (i.e. discrimination or harassment based on race, religion, sexual orientation, etc.).  This provision becomes effective 60 days after the new bill becomes law and will apply to claims filed on or after that date.

6. Claimants May Now Seek to Recover Punitive Damages and Attorneys’ Fees Against Private Employers.  This is yet another significant change in the law, because it not only provides plaintiffs with additional claim leverage, but it also makes them eligible to walk away with a significantly higher recovery upon a successful claim.  This change applies however, only to disputes between claimants and “private employers” (a newly defined phrase under the law), and it does not include disputes with the state or other public entities – i.e. a state or local department, agency, board or commission.  This provision also becomes effective 60 days after the new bill becomes law and will apply to claims filed on or after that date.

7. The Law Instructs Adjudicators to Interpret It Broadly.  This instruction is similar to the one included in the NYCHRL, which has forced adjudicators to analyze NYCHRL claims separately from concurrent claims asserted under the NYSHRL and federal anti-discrimination laws.  Now, a judge or arbitrator will have to conduct three separate analyses – one under the federal law, NYSHRL and NYCHRL each.  The result means that it will not only be easier for a plaintiff to prove a claim under the NYSHRL as compared to a federal claim, but it also means that more plaintiffs will survive early dismissal of the those claims, whether at the motion to dismiss or summary judgment stages.  This provision becomes effective immediately once the bill is signed into law, which means that employers should consider reassessing the viability of active claims.

8. Employers May Not Include Broad Non-Disclosure Provisions in Settlement/Separation Agreements Resolving Any Discrimination Claim Unless it is Plaintiff’s Preference.  This restriction was introduced for the first time last year with respect to sexual harassment claims only.  Now it extends to all types of discrimination claims.  More specifically, the law precludes employers from:

Include[ing] or agree[ing] to include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, in violation of the laws prohibiting discrimination, including but not limited to [the NYSHRL], any term or condition 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.

There’s a lot to unpack there, but here are some quick takeaways:

• This does not preclude employers from using non-disclosure provisions altogether.  Employers may still use broad-based non-disclosure provisions where they are separating with an employee absent a discrimination dispute.  In other words, you can still require an employee to enter into a broad release of claims, including discrimination claims, and include your standard non-disclosure provision, in the context of an ordinary separation. 

• This also does not preclude employers from using appropriately tailored non-disclosure provisions even when there is a discrimination dispute.  The provision only prevents the use of restrictions against the disclosure of the underlying facts and circumstances to the claim or action (unless it is the individual’s preference); it does not, however, prevent the disclosure of all other information, e.g., it does not prevent disclosures of certain of the terms and conditions of the agreement. 

• Employers should pay close attention to the guidance on the New York State Department of Labor’s website regarding how to structure non-disclosure agreements where the individual must exercise his or her preference, including the need to enter into a confidentiality agreement separate and apart from the settlement/separation agreement. 

In addition, the new law requires:

• Any non-disclosure term or condition to be provided in writing to all parties in “plain English”, and, if applicable, in the primary language of the individual; and

• The inclusion of certain language confirming for the individual that the non-disclosure restriction does not, among other things, limit them from (i) initiating, testifying, assisting or complying with a subpoena, (ii) participating in any manner with an investigation conducted by an enforcement agency, or (ii) filing or disclosing facts necessary to receive unemployment insurance benefits, Medicaid or other public benefits to which the individual is entitled; and

• In the case of a non-disclosure provision entered into between the employer and individual on or after January 1, 2020, which prevents the individual from disclosing factual information related to a future claim of discrimination, the non-disclosure provision must include language confirming for the individual that it does not prevent them from speaking with law enforcement, the EEOC or another human rights enforcement agency or any attorney. 

This provision becomes effective 60 days after the new bill becomes law.

9. Employers May Not Force Individuals to Arbitrate Discrimination Claims.  New York tried to generally eliminate the use of mandatory arbitration provisions for sexual harassment claims last year.  Now, the law extends this prohibition to all discrimination claims.  However, Federal law may preempt this part of the new law in light of the Supreme Court’s arbitration-friendly decisions over the last few years, and if preempted, employers may still turn to arbitration as an option.  This provision also becomes effective 60 days after the new bill becomes law.

10. The Law Enhances the Distribution Requirement of Sexual Harassment Policies and Training Materials.  Employers will now be required to provide their employees at the time of hire and at the time they deliver their annual training, a “notice” that contains a copy of the employer’s sexual harassment prevention policy and the “information presented at such employer’s sexual harassment prevention training program.” 

This is where things get tricky.  The law also states that an employer must deliver a copy of this notice in English and in the employee’s primary language.  The law next directs the Department of Labor (DOL) to prepare in other languages templates not of the notice, but of the DOL’s model sexual harassment policy and training materials.  Lastly, the law then instructs employers to provide a copy of the notice in the employee’s primary language if the DOL prepared a template of its model policy and training materials in that language, but it does not include a similar instruction regarding the model policy and training material. 

The above creates confusion, and further complicating matters is that earlier guidance from the DOL states that employers should provide policies and training in English and in the employee’s primary language.  To date, the DOL has only released training videos in other languages (in Bengali, Chinese, Haitian-Creole, Korean, Italian, Polish, Russian, and Spanish).  Will the DOL continue to require distribution of policies and training material in the employee’s primary language despite the absence of any statutory requirement?  We’d surmise in the affirmative, but we will also wait to see how the DOL updates its guidance on this issue.  Further, will the DOL release a model “notice” when it releases templates of its policy and training materials in other languages? Stay tuned. 

But without additional DOL guidance, employers must do their best to create an appropriate English-only written “notice”, given that this provision becomes effective immediately after it becomes law and given the October 9, 2019 training deadline.  Employers, however, may want to adopt a wait-and-see attitude regarding the dual language requirement. 

11. Individuals May Now File a Complaint of Sexual Harassment with the State Division Within Three Years Instead of One Year.  The new law extends the statute of limitations to file a complaint of sexual harassment with the state human rights law enforcement agency from one to three years.  It remains at one year for all other discrimination claims.  This provision becomes effective one year after the new bill becomes law.

So there you have it – some big changes to the New York State Human Rights Law.  We will provide an update (if and) when the Governor signs the law and will update the compliance timeline accordingly.  In the meantime, New York employers, however, should remain ever-mindful of the upcoming October 9, 2019 training deadline (and New York City employers must also remain mindful of the separate Year End deadline under the NYCHRL).  It’s only June at the moment, but from an operations perspective, we strongly urge employers to start planning now in order to effectively meet the deadline(s).