Q: I am a New York employer. What should I know about the recent amendments to the New York Human Rights Law?
A: In June 2019, New York State approved a bill that makes numerous changes to the New York Human Rights Law (“NYHRL”), governing discrimination and harassment. Governor Cuomo has not yet signed the bill, but is expected to shortly.
As explained in more detail below, the legislation significantly increases the NYHRL’s coverage by expanding the definitions of “harassment” and “employer.” The legislation also prohibits non-disclosure clauses in any settlement agreement involving discrimination allegations. Finally, the legislation expands employers’ sexual harassment training obligations, and extends the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights to three years.
Definition of Harassment
The NYHRL currently prohibits harassment based on gender, race, religion, sexual orientation, gender identity or expression, or national origin. The amendments expand these protected categories to include age, creed, color, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because an individual has opposed any practices prohibited by the NYHRL or participated in any proceeding under the NYHRL.
The amendments also significantly expand the definition of harassment. Currently, to prove harassment under the NYHRL, a plaintiff must demonstrate that the harassment was “severe and pervasive.” Under the amendments, a plaintiff need only show that the harassment “subjects an individual to inferior terms, conditions, or privileges of employment.” Employers will no longer be permitted to rely on the affirmative defense that the employer had an effective complaint procedure, the individual did not take advantage of it, and there was no adverse employment action. Rather, the employer’s only affirmative defense is if the harassing conduct “does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” Lowering the standard from “severe or pervasive” harassment to harassment that rises above “petty slights or trial inconveniences” greatly expands the universe of potential harassment claims and aligns the New York state law with the standards set forth in the New York City Human Rights Law.
The new definitions will be effective 60 days after the bill become law.
Definition of Employer
The amendments remove the NYHRL’s current carve-out for employers with fewer than four employees. Beginning 180 days after the bill become law, the NYHRL will apply to all employers regardless of size
Inclusion of Non-Disclosure Clauses in Settlement Agreements
New York employers may recall that, in 2018, the state passed a new law prohibiting non-disclosure provisions in any settlement agreement of a sexual harassment claim unless the complainant prefers to include the provision, has 21 days to consider it, and has a seven-day revocation period. The amendments expand these prohibitions to settlement agreements of any discrimination claim, rather than just claims of sexual harassment. In addition, non-disclosure provisions are void to the extent that they prohibit or restrict the complainant from participating in an investigation by a government agency or disclosing any facts necessary to receive unemployment insurance or other public benefits.
These changes will be effective 60 days after the bill becomes law.
Sexual Harassment Training
The amendments expand upon last year’s new law requiring employers to give annual sexual harassment training. Employers will be required to train employees and distribute policies in the employees’ primary language. The New York Commissioner of Labor will create versions of the template sexual harassment training and policy in other languages. If there is not a template available from the Commissioner in an employee’s primary language, the employer can provide the policy and training in English.
Statute of Limitations
Effective one year after the bill becomes law, the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights will be increased to three years, as compared to the current one year statute of limitations.
Steps for Compliance
To prepare for the amendments, employers should review and update all relevant policies and training materials. While anti-harassment should always be an area of focus for employers, employers should be especially aware of any potentially harassing situation given the forthcoming lower standard for harassment under New York State law.