Locke Lord QuickStudy: New York Discrimination and Sexual Harassment Law Update: Another Round of New ‎‎Laws Makes the State Most Progressive in the Nation

In recent months, New York has implemented several changes to its discrimination and sexual ‎harassment law, many of which are effective in the coming month.  ‎

On July 10, 2019, Governor Cuomo signed into law the Pay Equity Law (S.5428-B / ‎A.8093-A) which broadens the standard required of an employee, intern, or applicant to establish ‎compensation discrimination under the New York Equal Pay Law. The most notable change to ‎the Equal Pay Law is its inclusion of a lesser, alternative standard that a member of a protective ‎class must show to succeed on an equal pay claim.

Under the new law, a complainant need only demonstrate that his or her job is ‎‎“substantially similar” to the comparator’s job – rather than the current New York equal pay ‎standard, which requires the complainant to show his or her job is “equal” to the comparator’s ‎job.  Thus, employers are advised to perform a review of the various jobs and the skills, efforts, ‎and responsibilities of its employees to ensure that all workers who are “substantially similar” to ‎one another are paid the same – i.e., not just merely due to job title.  There are, of course, ‎legitimate reasons set forth in the law that justify compensation differences, including “where ‎payment is made pursuant to a differential based on: (i) a seniority system; (ii) a merit system; (iii) ‎a system which measures earnings by quantity or quality of production; or (iv) a bona fide factor ‎other than status within one or more protected class or classes, such as education, training, or ‎experience.”   Before the amendment, the Equal Pay Law in New York only protected wage ‎discrimination based on the worker’s gender; it has now been expanded to all protected ‎classification under the Human Rights Law.  The Pay Equity Law is effective as of October 8, ‎‎2019.  ‎

Also on July 10, 2019, the Governor signed into law S.6549 / A.5308-B, commonly ‎referred to as the New York Salary History Law, which prohibits inquiries into a job applicant’s ‎or current employee’s salary or wage history.  The law is effective as of January 6, 2020.‎

Two days later, on July 12, 2019, the Governor signed into law amendments to the ‎Human Rights Law and Dignity for All Students Act (S.6209A / A.7797A) to make clear that ‎discrimination based on race includes hairstyles or traits associated with race.  Specifically, the ‎law’s new subsections to the definitions of race now include “traits historically associated with ‎race, including but not limited to hair texture and protective hairstyles.”  Outside of California ‎‎(SB 188), New York is now the second state to codify such racial discrimination standards, and ‎New Jersey’s legislature is currently considering a similar bill (NJ A-5564).‎

Less than a month later, on August 9, 2019, the Governor signed into law further ‎amendments to the Human Rights Law (S.04037 / A.4204), which prohibit employment ‎discrimination based on religious attire, clothing, or facial hair, and prevent employers from ‎refusing to hire, attain, promote, or take other discriminatory action against an individual for ‎wearing attire or facial hair in accordance with tenets of their religion.‎

Most recently, on August 12, 2019, the Governor signed into law S.6577 / A.8421, which ‎implements significant new workplace harassment protections into various New York laws, ‎including the Human Rights Law.  As detailed below, the law is set to phase in various sections ‎over the course of the next year – but most of the changes take effect as early as October 11, ‎‎2019.  The intent behind the law is clear, as it was enacted to “mak[e] it easier for workplace ‎sexual harassment claims to be brought forward.” 

Other principal changes to the Human Rights ‎Law are listed below, along with a brief commentary regarding selected changes. Those changes ‎to the Human Rights Law not effective until after October 11, 2019 are noted below. ‎

• Eliminates the restriction that harassment be “severe or pervasive” in order to ‎be legally actionable.  Previously, a plaintiff was required to establish that the actionable ‎harassing conduct was “severe or pervasive,” which has been the standard under federal law for ‎decades. The Human Rights Law now eliminates that requirement to allow plaintiffs to bring ‎harassment claims where the actionable conduct exceeds “petty slights or trivial inconveniences.” ‎This is the current standard under the New York City Human Rights Law, which had been ‎widely understood to be the lowest threshold for liability in the country.

• Requires all employment-related non-disclosure agreements to include ‎language that allows employees to file a complaint of harassment or discrimination.  Now ‎New York law prohibits employers from including in settlement agreements a non-disclosure ‎clause that would prevent employees from filing discrimination and/or harassment claims.  ‎Excepted are circumstances where the complainant requests non-disclosure and, in that event, is ‎given 21 days to consider the provision as well as seven days to revoke it. On a related note, the ‎law now also forbids employers from including a clause that prevents the disclosure of alleged ‎harassing or discriminatory conduct to a local, state, or federal agency in connection with an ‎investigation.

• Prohibits mandatory arbitration to resolve cases of discrimination and ‎harassment in the workplace.  Although the law now prohibits mandatory arbitration of ‎discrimination and harassment claims, courts are likely to find this provision of the statute is pre-‎empted by the Federal Arbitration Act and therefore unenforceable.

• Eliminates an affirmative defense previously available to employers where the ‎employee failed to follow internal employer procedures.  The often-used affirmative defense, ‎known as the “Farragher/Ellerth defense,” is no longer available to employers being sued under ‎the Human Rights Law (i.e., by an employee who failed to follow his or her employer’s ‎complaint reporting procedures prior to filing an action). Thus, New York employers now can be ‎held liable despite a complainant’s failure to follow the employer’s complaint procedure.

• Extends availability of punitive damages to employment discrimination ‎actions against private employers.  The new law allows prevailing plaintiffs in court actions or ‎employment discrimination cases brought before the State Division of Human Rights to recover ‎punitive damages and attorneys’ fees.

• Clarifies that courts are to interpret the Human Rights Law “liberally” for ‎remedial purposes, “regardless of the federal rollback of rights.”‎

• Extends protections against all forms of discrimination in the workplace to all ‎contractors, subcontractors, vendors, consultants, or others providing services and against ‎all forms of discriminatory harassment to domestic workers.

• Requires all employers to provide employees with their sexual harassment ‎prevention policies in the employee’s primary language.‎

• Expands the NYHRL to all employers within the state, regardless of the ‎number of employees in New York.  This change becomes effective on February 8, 2020.‎

• Extends the statute of limitations for employment-related sexual harassment ‎claims filed with the New York State Division of Human Rights from one to three years.  ‎This change becomes effective on August 12, 2020.‎

By way of a reminder, New York employers are required to conduct sexual harassment ‎training for all employees on or before October 9, 2019 and on an annual basis thereafter. The ‎training has many required elements, as we detailed in our QuickStudies dated July 11, 2018 and ‎again on September 6, 2018.  Locke Lord has prepared training materials that can be tailored to ‎individual clients, and developed a low-cost means for annual compliance. ‎

On February 12, 2019, we reported on ten new employment laws in the 12 months in ‎New York. With the new laws described above, added to those in 2018 and early 2019, New ‎York has now become the most progressive state in the country in terms of anti-sexual ‎harassment and discrimination.  The burdens on employers - both large and small - have been ‎significantly increased.‎