Lipsky Lowe discusses the recent expansions of workplace discrimination and harassment protections in New York.

Workplace Discrimination and Harassment Protections Expanded in New York

By Douglas Lipsky

In August 2019, Governor Cuomo signed legislation amending the New York State Human Rights Law (NYSHRL) that essentially strengthens worker protections against discrimination and harassment. Some of the new legal requirements are already in effect and more are on tap for the coming year. The following is a brief discussion of the new workplace discrimination and harassment protections in New York. 

Changes to the NYSHRL at a Glance

Since October 2018, all employers in the state have been required to provide employees with sexual harassment training on an annual basis. The legislation now requires employers to provide employees with a copy of the anti-harassment policy at the time of hire as well as during the annual training.

The most significant change, which became effective October 11, 2019, dramatically lessens the burden of proof in workplace harassment claims. Complainants are no longer required to show that harassment is severe or pervasive, but rather that they were subjected to inferior terms, conditions, or privileges of employment due to their protected status. In addition, aggrieved employees are no longer required to show that they have been treated less favorably than those outside their protected class. 

Moreover, employers can no longer assert the Faragher/Ellerth defense which we wrote about in a prior blog post. In short, employees are no longer required to report harassment to their employers before taking legal action while employers who have adopted anti-harassment policies and reporting procedures are not protected from potential liability. 

The amended NYSHRL also allows prevailing employees to recover attorneys’ fees in harassment claims, may entitle them to punitive damages, and extends protections against discrimination, harassment, and retaliation to independent contractors and vendors. The legislation also prohibits employers from compelling arbitration of discrimination and harassment claims; however, a recent federal court ruling on the enforceability of arbitration agreements under the Federal Arbitration Act will likely preempt this provision of the amended law. 

Other changes to the NYSHRL that become effective in 2020 include:

  • Employment-related confidentiality agreements must exclude communications with law enforcement, local, state or federal agencies, and attorneys (January 1, 2020)
  • Employers of any size will be covered under the NYSHRL (February 8, 2020)
  • The statute of limitations for asserting a sexual harassment claim expands from 1 to 3 years (August 12, 2020)

In short, the amendments to the NYSHRL level the playing field for employees in discrimination, harassment, and retaliation claims. Employers should review their policies and procedures to ensure that they are in compliance with the new requirements. Finally, employees who believe they have been subjected to discrimination or harassment in the workplace should consult an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.