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August 2019

No “Trivial Inconvenience” for Employers: New York State Redefines Harassment

On August 12, 2019, Governor Andrew Cuomo signed into law a sweeping change to the New York State Human Rights Law (“NYSHRL”) regarding sexual harassment in the workplace, making it much easier for employees to sustain claims against their employers.

Until now, to establish a claim of workplace harassment, an employee was required to demonstrate that the alleged harassment was “severe and pervasive.” The changes to the NYSHRL eliminates the “severe and pervasive” standard, requiring employees to demonstrate only that they were subjected to “inferior terms, conditions or privileges of employment” as a result of their membership in a protected class. Employers may defeat claims under the NYSHRL by demonstrating that the alleged misconduct amounts to nothing more than “petty slights or trivial inconveniences.”

In adopting these standards, the NYSHRL expands its protections to mirror those provided by the broader New York City Human Rights Law ("NYCHRL").  See Williams v. New York City Hous. Auth., 1 A.D.3d 62 (1st Dept 2009). Under the NYCHRL, the courts have regularly held conduct that is not considered severe and pervasive, such as a single incident in which a supervisor grabbed an employee and threatened violence, constitutes more than “petty slights or trivial inconveniences.” Therefore, in adopting this broader standard, the NYSHRL increases the protections afforded to employees across New York state and thus a corresponding increase in claims is anticipated.

Employers should be aware that this new standard is not limited to sexual harassment claims. Rather, the new standard applies to alleged harassment based on an employee’s membership in any protected class. These classes include race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status and domestic violence victims.

The new law also introduces a number of other changes. Chief amongst these changes to the NYSHRL is that employers can no longer rely on the “Faragher-Ellerth” affirmative defense, which holds that an employee’s claim fails where he unreasonably fails to avail himself of the employer’s reporting procedures. While an employee’s unreasonable failure to follow an employer’s reporting protocol may still be used as evidence to defend against that claim, it will not be determinative.

The law also extends anti-discrimination protections under the NYSHRL to “non-employees” including contractors, subcontractors, consultants, vendors or other parties engaged in a contractual relationship with the employer.

Additionally, the law imposes new restrictions on nondisclosure agreements between employers and their employees. Specifically, employers will be prohibited from including nondisclosure provisions in settlement agreements involving any unlawful discrimination without the employee stating that it is his or her express preference that such a provision be included. This requirement previously only applied to claims of sexual harassment under the NYSHRL.

Finally, one of the most significant changes, to be implemented as of August 12, 2020, extends the time for employees to file claims of sexual harassment at the NYS Division of Human Rights from one year to three years.

These dramatic changes to the NYSHRL place a significant burden on employers across New York state. It is important for businesses to remain proactive. Employers should:

  • Remain educated on the ever-changing protections afforded to employees by the applicable federal, state, city and other local laws.
  • Provide annual sexual harassment training sessions for employees, as required under state and local law.
  • Regularly update employee handbooks and other materials containing anti-discrimination, anti-harassment and anti-retaliation policies to comport with the most-recent versions of federal, state, city and local laws.
  • Provide clear and concise reporting protocols for employees to follow in bringing an internal claim of discrimination, harassment or retaliation.
  • Ensure that all policies and procedures disseminated to employees are provided in each employee’s primary language.

The New York Gordon Rees Scully Mansukhani, LLP Employment practice group is uniquely poised to assist your company with any issues related to any claims of discrimination.  For questions regarding any aspect of the new legislation in New York, please contact the authors. Associate Sebastian Clarkin contributed to this advisory.

Employment Law

Mercedes Colwin
Benjamin A. Levine
Misty D. Marris

Employment Law