By Katherine L. Wood, Esq. and Jack Bargnesi
During his tenure as Governor, Governor Cuomo has undertaken an extensive initiative focused on alleviating sexual harassment in the workplace. This initiative began last year when the Governor approved amendments to the New York State Executive Law which mandate sexual harassment prevention training for all employees in New York State, among other requirements.
To further this initiative, the Governor has now signed bill SB 6577 into law which further amends the New York State Executive Law and significantly lessens the burden placed on employees who bring sexual harassment suits against their employers. Importantly, bill SB 6577 has an impact on more than cases of sexual harassment. This bill expands employee’s protections when it comes to all protected classes under New York State Executive Law, such as race, sex, and familial status.
Some of the key provisions of bill SB 6577 that employers should be aware of are:
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Expanding the definition of an “employer” under NYS Human Rights Law—All employers will now be covered, regardless of the number of employees an employer has. This will go into effect 180 days after enactment for claims filed after that date. Under the old law, only employers with four or more employees were covered
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Expanding protection for “non-employees”—Non-employees, including independent contractors, subcontractors, and consultants will now be protected from all forms of harassment/discrimination if the employer knew or should have known about the harassment/discrimination and did not take the corrective action necessary to stop it. Under the old law, non-employees were only protected from sexual harassment.
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Lower burden of proof for plaintiffs alleging unlawful harassment—The new law will abolish the previous “severe or pervasive” standard previously used to determine whether behavior rose to the level of harassment. The “severe or pervasive” standard meant that one instance of severe conduct or multiple instances of less severe conduct could be considered harassing. Bill SB 6577 explicitly states that the conduct does not need to be “severe or pervasive” to be unlawful harassment. Bill SB 6577 does provide a new affirmative defense to employers, allowing them to defeat harassment claims by proving the conduct was “petty slights and trivial inconveniences.” However, this new affirmative defense is clearly a very low standard for plaintiffs to overcome and will likely only be successful when utilized on blatantly frivolous claims. Moreover, employees will not have to provide comparator evidence to prove harassment, which was a key component of harassment cases in the past.
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Faragher-Ellerth affirmative defense no longer dispositive—Under the new law, the fact that an employee did not make a complaint about the harassment would “not be determinative” of whether the employer will be liable. This is significant because employers may now be held liable for discrimination/harassment they were not even aware of. Employers were previously able to defeat harassment claims when the employee did not make a workplace complaint in accordance with the employer’s internal complaint procedures.
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Extension of the Statute of Limitations for sexual harassment claims—The statute of limitations for sexual harassment claims will now be extended to three years, giving plaintiffs more time to file a complaint with the NYS Division of Human Rights. Under the previous law, the statute of limitations to file a sexual harassment complaint was one year.
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Elimination of mandatory arbitration clauses—Employers will now be barred from including mandatory arbitration clauses in employment contracts for all discrimination claims.
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Limiting non-disclosure agreements—The new law will restrict non-disclosure agreements for any settlement stemming from a discrimination claim. This will hold true unless confidentiality is the plaintiff’s preference, the plaintiff is given 21 days to consider the agreement, and the plaintiff is given seven days after signing the confidentiality agreement to revoke their acceptance.
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Additional requirements for sexual harassment training—At the time of hire and at every annual training session, the employer will have to provide, in writing and in every employees’ primary language, their sexual harassment policy and the materials/information covered at the training session. Beginning in 2022, the state will be required to evaluate and update, as needed, their sexual harassment policy every four years.
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Attorney Fees and Punitive Damages now available to prevailing plaintiffs—Payment of attorneys’ fees will now be mandatory for any prevailing plaintiff. A defendant will only be able to recover attorneys’ fees if the claims against them were frivolous. Punitive damages will also now be available to prevailing plaintiffs.
These sweeping changes will surely impact the employment discrimination litigation landscape in New York State. We foresee not only an increase in discrimination/harassment claims being brought against employers, but also an increase in employee victories due to the much lower legal barriers for plaintiffs to overcome. As a practical starting point, employers will need to amend their harassment/discrimination policies to protect “non-employees,” including contractors, subcontractors, consultants, and vendors from all forms of unlawful harassment/discrimination. If they have not already done so, employers must prepare, in writing, their sexual harassment policy and the materials/information covered at the annual training session to be distributed at the time of hire and during the training.
Despite the changes in legal standards, employers should continue to implement internal complaint procedures to handle discrimination and harassment complaints of all kinds. If employers have any questions concerning how the new bill may impact their day-to-day operations, please feel free to contact any member of Hurwitz & Fine’s team of experienced Employment Law attorneys.
