New York Enacts Extensive New Harassment and Discrimination Legislation

August 26, 2019

Topics: Harassment Discrimination and Retaliation

On August 12, 2019, Governor Cuomo signed new legislation into law that significantly expands the harassment and discrimination protections for employees in New York under the New York State Human Rights Law.  Please note that effective dates of the different provisions of the law vary, with some of the provisions effective immediately and others at a later date.  Some of the practical implications for employers include:

  • All New York employers regardless of size are now covered by the New York State Human Rights Law
  • Expanding Mandatory Notice Requirements
    • Employers  are required to provide employees, at time of hire and at the annual sexual harassment training, with the employer’s sexual harassment prevention policy and information presented at the sexual harassment prevention training in English as well as in the employee’s primary language (to the extent that the state has published a template in that language).
  • Lowering the standard for harassment claims
    • Conduct no longer needs to be  “severe and pervasive” to be actionable.
  • Expanding the protections for contractors and other vendors against all forms of unlawful discrimination in the workplace (beyond just sexual harassment)
  • Prohibiting mandatory arbitration to resolve claims of discrimination and harassment on any basis in the workplace (beyond just sexual harassment)
  • Prohibiting confidentiality in agreements, related to facts or claims of discrimination or harassment (beyond just sexual harassment)
    • There is an exception to this prohibition if the employee/claimant themselves requests the confidentiality provision
  • Requiring non-disclosure agreements in employment contracts and other agreements that prevent disclosure of information related to any future discrimination claim to include a carve-out provision.  
    • The carve-out provision must explicitly state that the employee or potential employee 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.
  • Making punitive damages and attorney’s fees available in discrimination, harassment and retaliation lawsuits brought under the New York State Human Rights Law.

In light of this new law, employers would be prudent to consult with counsel, including to review existing policies and agreements.  Please feel free to reach out to an attorney at Greenwald Doherty with any questions.