On August 12, 2019, Governor Andrew Cuomo signed into law S.6577/A.8421 (the “Act”), providing new workplace harassment protections for New York workers. While certain provisions of the previous law applied only to employers with four or more employees, the Act is applicable to all employers in the state—including nonprofits.

Effective October 11, 2019, the Act amends the Executive Law to considerably lower the bar for workplace harassment claims. Under the new law, it is an unlawful discriminatory practice for an employer

to subject any individual to harassment because of an individual’s age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because the individual has opposed [a discriminatory practice] or because the individual has filed a complaint, testified or assisted in any proceeding [relating to a discrimination complaint].

Harassment no longer needs to be “considered severe or pervasive” to constitute prohibited conduct. Instead, harassment constitutes an unlawful discriminatory practice if “it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of [the] protected categories.” An employer may be liable even if an individual has not previously made a complaint about the harassment to such employer. As an affirmative defense, employers may assert that the alleged 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.”

In addition to changing the standard for actionable harassment claims, the Act:

  • Expands the prohibition against unlawful discriminatory practices to apply to domestic workers and non-employees (e.g., contractors, vendors, consultants, and volunteers) providing services in the workplace. (effective October 11, 2019)
  • Provides that victims of employment discrimination may be awarded punitive damages (under the previous law, punitive damages were awarded only in housing discrimination cases). (effective October 11, 2019)
  • Provides that victims of employment discrimination shall be awarded reasonable attorney’s fees (under the previous law, attorney’s fees could be awarded only in housing or sex discrimination cases in the court’s discretion). (effective October 11, 2019)
  • Prohibits employers from requiring an employee to submit to mandatory arbitration to resolve an unlawful discriminatory claim. (effective October 11, 2019)
  • Provides that an agreement to resolve a discrimination claim may not prohibit disclosure of facts related to such claim, unless confidentiality is the complainant’s preference. (effective October 11, 2019)
  • Prohibits an employer from requiring a current or potential employee to sign any agreement that would prevent disclosure of factual information related to a future discrimination claim unless it is clear that such agreement does not prohibit the individual from speaking with law enforcement, the equal employment opportunity commission, the state division of human rights, a local commission on human rights, or legal counsel. (effective October 11, 2019)
  • Extends the time period for filing a complaint of sexual harassment in employment from one year to three years after the alleged conduct. (effective August 12, 2020)
  • Requires employers to provide all employees—at the time of hiring and at each annual sexual harassment prevention training as required by law (see our related blog post)—a notice containing the employer’s sexual harassment prevention policy and the information presented at the sexual harassment prevention training. The notice must be provided in writing in English and in the language identified by each employee as his or her primary language. According to the Act, the New York State Department of Labor Commissioner’s templates of the model sexual harassment prevention policy and the model sexual harassment prevention training program will be made available to employers in various languages. If a translation in an employee’s primary language is not made available by the Commissioner, the employer may provide the English-language notice. (effective August 12, 2019)

The effective date of each provision of the Act is indicated above, but note that it will not apply to employers with one to three employees until February 8, 2020. All New York nonprofit organizations should consult legal counsel and review their existing policies and agreement forms to ensure compliance with the new requirements.

– Ahsaki Benion