On August 12, 2019, Governor Andrew Cuomo signed into law a bill that redefines unlawful harassment in the workplace in New York, and makes drastic changes to the responsibilities and liabilities of all employers across the state. Most provisions of the law will take effect on October 11, 2019, and employers must prepare their policies and their employees for the new changes. The changes are especially important for employers with 3 or fewer employees, who were previously exempt, but become subject to New York’s discrimination and harassment laws as of the effective date.
Redefining Discrimination and Harassment
Prior to the new law taking effect, New York’s burden of proof for discrimination or harassment in the workplace has followed the model set by the EEOC, a federal agency. An employee may prove unlawful harassment in the workplace by showing that he or she endured offensive conduct so “severe or pervasive” that it created a hostile work environment for the employee, based on a protected characteristic (age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic characteristics, familial status, marital status, domestic violence victim status, and, more recently, gender identity or expression). Until now, employers were able to establish an affirmative defense by showing that (i) the employer took reasonable steps to prevent and correct the harassing behavior, and (ii) the employee unreasonably failed to take advantage of the employer’s preventative or corrective opportunities.
The new law disposes of these standards in order to reduce the burden of proof required of employees. As of October 11, an employee may prevail in a harassment or discrimination suit against an employer if the employee can show he or she was subject to inferior terms, conditions, or privileges of employment because of his or her protected characteristic. It is important to note that an employee can meet this burden without ever filing a complaint with their employer. The employee also need not make a showing that some other person without such protected characteristic was comparatively treated better. As an affirmative defense, the employer may prove that the conduct endured by the plaintiff employee does not rise above the level “petty slights” or “trivial inconveniences,” as determined by a “reasonable victim of discrimination” with the same protected characteristic.
The statute does not offer any guidance as to how “trivial inconveniences” or “petty slights” are to be defined. However, the law does explicitly state that the New York’s discrimination law must be construed as liberally as possible, and any defenses available to the employer are to be construed as narrowly as possible, in order to maximize the deterrence of discrimination.
Harassment and Discrimination Against Non-Employees
In the past, employers have been liable to protect non-employees from discrimination based on sex, including sexual harassment. As of the effective date, protection for non-employees is expanded to include discriminatory behavior and harassment on the basis of all protected classes. Any person providing services pursuant to a contract in the workplace is covered by New York discrimination and harassment laws as if such person were an employee of the employer, and it is the burden of the employer to protect such worker from unlawful treatment. This includes any contractors, subcontractors, vendors, consultants, or their employees.
Extension of Remedies to Victims
In addition to any compensation that a successful plaintiff may recover from his or her employer, the law will permit courts to award punitive damages to aggrieved employees, up to $10,000. Further, any employee who prevails in a discrimination claim is entitled to reimbursement of reasonable attorney fees incurred from the lawsuit. If the complainant is a victim of sexual harassment, the statute of limitations (the time in which the lawsuit must be filed) is extended from 1 year to 3 years beyond the unlawful conduct.
How Employers can Prepare
Although the upcoming changes to workplace discrimination and harassment may seem onerous to New York employers, there are steps employers can take to reduce the risk of liability. Small employers who have never had written employment policies should consider creating written policies, distributing them to employees, and training employees on proper and improper workplace conduct. Employers who already have written policies, especially if those policies use outdated definitions of harassment and discrimination, should update the policies to ensure compliance with the new laws. Now that New York employers are required to provide annual sexual harassment training sessions with for their employees (the first training to be performed no later than October 8, 2019), it may be prudent to pair sexual harassment trainings with advanced trainings on other types of unlawful workplace harassment and discrimination. Employers should also take this time to review their standard templates to ensure they comply with New York’s new restrictions on non-disclosures and mandatory arbitration.
