This week, the New York Senate and Assembly passed a bill that calls for major expansion of New York State laws protecting employees. We expect that the Governor will soon sign the bill into law.
Here’s what employers need to know:
The New York State Human Rights law which makes it unlawful for employers to discriminate against employees on the basis of age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status, will apply to all New York employers, regardless of size.
The “severe and pervasive” standard that previously was applied to hostile work environment claims no longer will be applicable to claims of unlawful harassment. The bill intends the result to be a lower burden for victims who claim unlawful harassment.
Employers may be held liable to non-employees (including contractors, subcontractors, vendors, and consultants) who are subject to any type of unlawful discrimination or harassment in the workplace. Previously this broad liability was only available for claims of sexual harassment.
Alleged victims will be able to pursue punitive damages against a private employer that engages in unlawful discrimination. Punitive damages will be available in addition to compensatory damages.
Employers may no longer rely on the defense that the victim did not report the discrimination/harassment (attorneys will recognize this as the U.S. Supreme Court’s Faragher-Ellerth defense). The fact that the victim did not complain no longer will be determinative of whether the employer is liable.
When a claim for any type of unlawful discrimination or harassment of any kind is settled, confidentiality only will be available if the claimant requests it.
Prevailing party attorneys’ fees will be mandatory for employment discrimination claims that result in a final order after a public hearing. In order for an employer to recover attorneys’ fees, however, it must establish that the claim was frivolous.
Employers must provide their written sexual harassment prevention policy to employees at hire and again at their annual sexual harassment prevention training. Employers also can expect requirements for the training and written policy to be updated every four years beginning in 2022.
The statute of limitations – or deadline – to bring a sexual harassment claim before the Division of Human Rights will be more than tripled to 3 years from the date of the harassment. This part of the law applies only to sexual harassment claims – at least for now.
No doubt this is a lot for employers to digest. However, employers should act now to make sure their policies and practices are compliant. The Coppola Firm’s attorneys are ready to help.