Earlier this summer the New York State Senate and Assembly passed a bill aimed to amend the New York State Human Rights Law (NYSHRL) and the N.Y. Civil Practice Law and Rules (CPLR) to combat harassment and provide substantial new protections for workers. Governor Cuomo signed the bill into law on August 12, 2019. The following provisions highlight the major changes that employers should immediately prepare for:

Lowering the Standard to Prove Harassment

Traditionally courts have held that hostile work environment claims under the NYSHRL are judged under the same standard as federal claims. Until recently that standard required a plaintiff to demonstrate that because of his or her status within a protected class, they encountered "severe and pervasive" conduct that a reasonable person would consider intimidating, hostile, or abusive. This was traditionally seen as a high standard, even prompting New York City to amend its own Human Rights Law to expressly reject it in 2005.

Under the new state law, an employer will now be liable for harassment when conduct subjects a person to "inferior terms, conditions or privileges of employment" on account of their protected class. 

There is no longer any requirement for the conduct to be severe or pervasive.  This, of course, lowers the bar for words and conduct to be actionable in court. However, the law makes clear that an employer can escape liability if the conduct complained of is nothing more than what a reasonable person of the same protected class would consider petty slights or trivial inconveniences. This new standard appears to be consistent with the New York City Human Rights Law already in effect. However, the interplay between the NYSHRL and the City law will not be entirely clear until the provision takes effect on October 11, 2019, and it is first tested in court.

Overturning the Faragher/Ellerth Defense

Prior to the new law, employers could rely on a defense established by the U.S. Supreme Court in the Faragher/Ellerth cases. Under that doctrine, employers could escape liability if they could prove they attempted to prevent the harassing conduct by establishing a complaint procedure and promptly using that procedure after receiving a complaint, while also demonstrating that the employee unreasonably failed to utilize the internal complaint procedure. The new law abolishes this defense entirely and provides that employees are not required to complain internally before having the right to sue.

Punitive Damages and Attorney’s Fees

Under the new law, all discrimination plaintiffs who are successful in court against a private employer are entitled to an award of attorney’s fees. Additionally, courts (or the Division of Human Rights) may award punitive damages in discrimination cases brought against a private employer (which was previously limited to only housing discrimination). An employer/respondent may recover attorney’s fees if the claims are found to have been frivolous.

Arbitration Clauses No Longer Valid

Last year New York amended the CPLR to prohibit agreements requiring claimants to submit sexual harassment complaints to arbitration (rather than go to court). The new law increases the scope of the provision (CPLR 7515) to any "violation of laws prohibiting discrimination," therefore legislatively prohibiting employers from enforcing agreements to arbitrate discrimination claims. However, it remains unclear whether this amendment will have any real effect, as a decision from the U.S. District Court for the Southern District of New York earlier this summer found that CPLR 7515 was preempted by the Federal Arbitration Act. See Latif v. Morgan Stanley, Case No. 18-cv-11528 (S.D.N.Y. June 26, 2019). Employers seeking to utilize arbitration agreements moving forward should understand the recent amendments, and continue to monitor how the interaction between CPLR 7515 and the FAA plays out in court. 

Statute of Limitations for Sexual Harassment

Additionally, the new law expanded the statute of limitations to file suit for sexual harassment from one year to three years. All other claims of discrimination must still abide by the NYSRHL’s original one-year statute of limitations.

These amendments further demonstrate Albany’s mission to combat harassment and discrimination in the workplace, and are among other significant changes affecting employers doing business in New York state. We discussed the impact that employers should anticipate from New York’s latest pay equity laws and hair bias ban here.