By Valerie K. Ferrier, Esq.
Friday, September 27, 2019
Following the first public hearings on sexual harassment since the early 1990s, New York passed legislation enacting major changes and the potential for much greater liability for employers in the state. The law will apply to all employees and non-employees, such as independent contractors. The changes liberalize the State Human Rights Law (HRL) and harmonize parts of it with the New York City Human Rights Law.
These amendments follow on the suite of laws passed in 2018 as part of the Women’s Equality Agenda in response to the #MeToo Movement and encompass provisions that previously applied only to sexual harassment to all forms of prohibited discrimination, on any basis.
Previously under the HRL, a plaintiff could prevail on a discrimination claim if conduct was “pervasive.” While there was no bright-line definition of how often conduct had to occur to cross the line in pervasiveness, it had to be more than episodic. Without that, a plaintiff had to show that although there were only a few incidents, or even only one, it was sufficiently “severe” that it altered the terms and conditions of employment, i.e., physical assault. The amendments specifically eliminate this burden of proof.
Moreover, the new law abolishes part of the Faragher-Ellerth affirmative defense, whereby employers could avoid liability if they: 1) took no adverse action against the employee complaining of harassment; 2) exercised “reasonable care” to prevent and promptly correct harassing or discriminatory behavior; and 3) the employee unreasonably failed to address the situation, such as by reporting the behavior to the employer. Courts already ruled a decade ago that the defense was unavailable for claims under the New York City Human Rights Law. Although the law allows an affirmative defense that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination … would consider petty slights or trivial inconveniences,” lawmakers failed to define a “petty slight or trivial inconvenience.” Case law on that point is scarce. Problematically, the statutory language also presupposes that a complainant is a “victim of discrimination.”
The amendments also:
- extend the time limit to bring a sexual harassment complaint to the New York State Division of Human Rights (SDHR) from one year to three, the same as that allowed under New York City law for gender-based harassment
- eliminate an employee’s need to identify a similarly situated employee, who is not a member of the same protected class as the complaining employee, who was treated better
- create the possibility of unlimited punitive damages against employers to be imposed by the SDHR, award attorney’s fees to a prevailing plaintiff and extend punitive damages for discrimination to all protected categories
- mandate a “liberal” construction of the law, regardless of a court’s interpretation of the federal standard
An employer’s right to insist on a nondisclosure agreement in a settlement of a sexual harassment or gender discrimination claim was already eliminated last year. The new legislation broadens that prohibition to all discrimination claims. (Confidentiality provisions are still permissible, if the settling plaintiff has an opportunity to consider and revoke consent.)
These amendments raise concern about the financial burden imposed on businesses for employees’ misdeeds. New York employers should enact zero tolerance policies for unlawful harassment and discrimination by their employees, and ensure that all employees have completed legally required sexual harassment training by October, and annually thereafter. Auditing policies and employee handbooks is also recommended to protect the company from a claimed violation of the New York State or City Human Rights Law.