Employers Beware: New York Has Passed Some Sweeping Changes to its Discrimination and Harassment Laws

n August 12, 2019, Governor Cuomo signed into law a bill that makes changes to New York's discrimination and harassment laws. These changes follow his signing of two other bills on July 10, 2019 that concern equal pay and salary history.  The changes go into effect beginning October 2019 and at various points over the next year.

Summed up, and in general terms, here are some of the changes:

Pay Equity: Equal wages must be provided for employees performing the same or "substantially similar" work under "similar working conditions."

Salary History: Employers are prohibited from soliciting information from an applicant or an employee regarding wage or salary history.

Burden of Proof for Harassment Claims: Employees no longer need to establish that harassing conduct was "severe or pervasive" to prove that harassment has occurred in the workplace; rather, they can now establish a lesser standard by showing that they were merely subjected to "inferior terms, conditions, or privileges of employment." This change is applicable to all claims of harassment - not just sexual harassment.  

Interestingly, and little discussed so far, is a change in the way discrimination is viewed.  Whether or not discrimination has occurred will be viewed through the eyes of the "reasonable victim" of discrimination as opposed to the "reasonable person," which is the current legal standard.  This means that if the victim of alleged discrimination feels that he or she has been discriminated against, this is sufficient, regardless of whether, objectively, a reasonable person may not see the conduct as discriminatory. 

Faragher-Ellerth Defense: Under existing law, once an employee establishes his or her initial burden of showing that he or she was harassed in the workplace, the employer often had a defense, known as the Faragher-Ellerth defense, if the employee did not complain about the harassment to the employer. However, under the new framework, the fact that an employee did not complain is no longer a defense for an employer.

Non-Employees in the Workplace: Similar to last year's change that protected non-employees in the workplace from sexual harassment, non-employees in the workplace are now protected from all forms of unlawful discrimination.

Non-Disclosure Agreements: Until now, it was not uncommon for employers to require their employees to resolve all workplace disputes in confidential binding arbitration, not court. It was also common for workplace discrimination and harassment claims to settle, and in a settlement agreement a provision was included prohibiting employees from disclosing the facts regarding the settlement. Now, similar to last year's change regarding the settlement of sexual harassment complaints and the limitation on the use of mandatory arbitration agreements, NDAs are prohibited for all forms of unlawful discrimination and harassment unless confidentiality is the employee's preference.

Damages and Attorneys' Fees: Punitive damages are now available in cases of unlawful employment discrimination, and attorneys' fees can be awarded to a prevailing employee. While the provision of attorneys' fees now aligns New York state law with federal law, the provision for uncapped punitive damages now provides for greater remedies than presently permitted under federal law.

The Bottom Line: The new laws are a continuation of certain changes to laws that took effect last year. Together these changes have resulted in a significant alteration of discrimination and harassment law in New York State.  The changes will arguably make it easier for employees to plead and prove sexual harassment and other harassment claims, and will also incentivize employees with the potential for increased damage awards. You can also expect that the revised legal standards, coupled with the expansion of actionable harassment claims beyond just sexual harassment, will result in an increase in litigation.

Moreover, previously, state law was interpreted consistently with federal law. However, that will likely no longer be the case. In those cases in which an employee brings claims under federal, state and city law, a court may now need to apply three different legal standards, which will further complicate the litigation of these types of cases.

Employers should ensure that their harassment and discrimination prevention training complies with the new legal standards, and that their procedures for preventing harassment and discrimination are consistent with current best practices. Employers should also review their form employment, confidentiality, arbitration, separation, settlement and other agreements in light of the new laws concerning arbitration and non-disclosure provisions.