Within the past few weeks, Governor Andrew Cuomo signed several pieces of legislation expanding the scope of anti-discrimination laws in the New York workplace and adding accommodation obligations for domestic violence victims. New York employers should review these changes to the law carefully, paying particular attention to the effective dates noted below, and update their policies/practices accordingly.
Anti-Discrimination and Anti-Harassment Protections
On August 12, 2019, Governor Cuomo signed into law significant expansions to workplace anti-discrimination and anti-harassment measures, adding to the sexual harassment reforms previously passed in 2018. The key provisions of these expansions (listed by their effective dates) include:
- Effective Immediately – All New York employers must provide employees with a notice, both at the time of hire and at every annual sexual harassment training, that contains the “employer’s sexual harassment prevention policy and the information presented at such employer’s sexual harassment prevention training program.” This notice must be provided in English and in the language identified as the employee’s primary language. Notably, in 2018, the State issued a model sexual harassment prevention policy in English, but employers are not required to provide their policy to employees in another language if the State has not published a template in that language.
- Effective October 11, 2019
- A complainant will no longer need to demonstrate that alleged sexual or other harassment is “severe or pervasive” to successfully bring a claim of sexual or other unlawful harassment under the New York State Human Rights Law (“NYSHRL”). Instead, a complainant need only show that he/she was subjected to “inferior terms, conditions or privileges of employment because of [his/her] membership in one or more of [the] protected categories [in New York State].”
- Last year, New York broadened its sexual harassment protections to apply to “non-employees” including contractors, subcontractors, consultants, vendors, or other persons providing services pursuant to a contact. Under the new law, New York employers may be held liable for discrimination of any kind against any of the aforementioned “non-employees.” This change applies only to claims that accrue and are filed on or after the October 11, 2019 effective date.
- The new law also precludes New York employers from asserting the Faragher-Ellerth affirmative defense. The Faragher-Ellerth affirmative defense applies to provide an employer with a defense to certain categories of damages when an employee unreasonably failed to take advantage of an employer’s internal complaint procedure. While the affirmative defense would still be available for federal harassment claims, employers will not be able to raise it in response to NYSHRL claims.
- Beginning on October 11, 2019, employees will be able to receive awards for uncapped punitive damages and attorneys’ fees in cases of employment discrimination under the NYSHRL.
- Since July 2018, employers have been precluded from including confidentiality clauses regarding claims/allegations of sexual harassment in any settlement, agreement, or other resolution unless they are the preference of the complainant. Pursuant to the new law, this prohibition extends to any claim, “the factual foundation for which involves discrimination, in violation of laws prohibiting discrimination, including but not limited to, [the NYSHRL].” Indeed, to include a confidentiality clause regarding a discrimination claim in a settlement agreement, the complainant must be provided with 21 days to consider the confidentiality provision and, if after the 21 days the complainant prefers to include such provision, his/her preference must be memorialized in an agreement signed by all parties. The complainant will then have 7 days to revoke this agreement.
- The existing prohibition on mandatory arbitration of sexual harassment claims will be extended to any claims of unlawful discrimination. This change, however, is expected to be preempted by federal law due to the recent Latif v. Morgan Stanley Co. (S.D.N.Y. June 26, 2019) decision, which held that the existing prohibition for the mandatory arbitration of sexual harassment claims is preempted by the Federal Arbitration Act in cases where both laws apply.
- January 1, 2020 – Confidentiality clauses that are included in an employment contract (or any other agreement between an employer and an employee/applicant) and that limit an employee/applicant from disclosing information related to a future discrimination claim (i.e., nondisclosure agreements) will be unenforceable, unless the provision includes an explicit carveout that the employee/applicant is not prohibited from “speaking with law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”
- February 8, 2020 – The definition of a covered employer under the NYSHRL will include all New York employers. Currently, the NYSHRL only applies to employers with 4 or more employees, except with respect to protections against sexual harassment.
- August 12, 2020 – Employees will have 3 years to bring a claim of sexual harassment to the New York State Division of Human Rights instead of the current 1 year statute of limitations for reporting.
Religious Attire, Clothing, or Facial Hair
This past August, Governor Cuomo also signed a bill that amends the NYSHRL to expressly prohibit employment discrimination based on religious attire, clothing, or facial hair worn as a form of religious observance. The only exception to this law is that an employer may not need to accommodate an employee’s or applicant’s religious attire, clothing, or facial hair if the employer can show that it is unable to reasonably accommodate the religious practice due to undue hardship (albeit, this is an extremely high standard to meet). This new law will take effect on October 8, 2019.
Reasonable Accommodation for Victims of Domestic Violence
On August 20, 2019, Governor Cuomo also enacted a new law that amends the NYSHRL to include various employment protections for victims of domestic violence. The law defines a “victim of domestic violence” as any person who is older than 16, married, or any parent accompanied by his or her minor child in which such person or such person’s child is a victim of an action committed by a family or household member that would constitute a violation of the New York penal law. The act must result in actual physical or emotional injury or create a substantial risk of physical or emotional harm to such person or such person’s child.
The NYSHRL already prohibits discrimination against employees based on their status as domestic violence victims, but the amendment explicitly provides that the following are unlawful practices:
- Refusing to hire, license, or terminate an individual because he/she is a victim of domestic violence;
- Discriminating against such individual with regard to compensation or other terms, conditions, or privileges of employment;
- Circulating or using a job posting, advertisement, or other publication expressing any limitation, specification, or discrimination about an individual’s status as a victim of domestic violence; or
- Using an employment application or making an inquiry that expresses any limitation, specification, or discrimination about an individual’s status as a victim of domestic violence.
Further, the law also requires employers to provide reasonable accommodations to employees who are victims of domestic violence. Specifically, employers must provide reasonable time off, unless such accommodation would pose an undue hardship on the employer’s business, to covered employees to:
- Seek medical attention for injuries caused by domestic violence, including for a child who is a victim of domestic violence (provided that the employee is not the perpetrator of the domestic violence against the child);
- Obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence;
- Obtain psychological counseling related to an incident of domestic violence, including for a child who is a victim of domestic violence (provided that the employee is not the perpetrator of the domestic violence against the child);
- Participate in safety planning and taking other actions to increase safety from future incidents of domestic violence, including temporary or permanent relocation; or
- Obtain legal services, assisting in the prosecution of the offense, or appearing in court in relation to the incident of domestic violence.
Notably, the law requires an employee to provide the employer with “reasonable advance notice of the employee’s absence, unless such advance notice is not feasible.” Employers may require an employee who must be absent from work without providing advance notice to submit a certification of the need for accommodation. Further, employers may require employees to charge the leave against any paid time off the employee has available. Employees are also entitled to continuation of existing health insurance coverage during any period of absence taken under this law.
The law also requires employers “[t]o the extent allowed by law,” to maintain the confidentiality of any information regarding an employee’s status as a victim of domestic violence. This new law will take effect on November 18, 2019.