Article contributed by Paul P. Rooney, Ellenoff Grossman & Schole LLP
Employers in New York City have, for some time, been held to the strictest standards in the nation when it comes to employment discrimination and discriminatory harassment. Soon, all employers in New York State will be required to meet, in substance, those same standards.
The New York State Human Rights Law (“State Human Right Law”) has been amended to make sexual harassment, as well as harassment based on other protected characteristics such as race or disability, easier to prove. The amendments also expand the types of workers who can bring discrimination and harassment claims, and restrict the use of nondisclosure agreements, among other reforms. In summary, the amendments greatly increase the impact of discrimination laws outside of New York City.
More Trials of Harassment Claims
Ever since federal discrimination laws recognized sexual harassment, and harassment motivated by other protected characteristics, as a form of employment discrimination, federal courts and agencies have held that harassment had to be “severe and pervasive” in order to give rise to a successful claim by an employee. New York State, as New York City did, has now jettisoned that requirement. Now, under the State Human Rights Law, to succeed on a claim of discriminatory harassment, the employee need only prove that the harassment subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in a protected category (i.e., sex, race, disability etc.). This is a far easier standard for employees to meet. Under this easier standard, the likely result is that many more cases will reach trial.
More Employers Covered
Until now, employers had to have four or more employees in order to be subject to the State Human Rights Law. The amendments will expand the coverage of the State Human Rights Law so that all employers, even those with just one employee, will be subject to it.
More Workers Covered
Until now, only employees could sue for discrimination under the State Human Rights Law – independent contractors and other workers were not covered by the law. The amendments extend rights to sue for discrimination to contractors, subcontractors, vendors, consultants, or other workers that provide. Additionally, it expressly provides protections to domestic workers. In light of the expanding “gig” economy, this change represents a significant expansion of state law protections to workers.
More Sunlight on Employment Agreements and Settlements
The reform package mandates that all employment agreements’ nondisclosure provisions expressly state that employees may, without violating the agreement, file discrimination and harassment complaints with the New York State Division of Human Rights or any local or federal agency, such as the Equal Employment Opportunity Commission. The agreements must further state that employees may participate in government investigations and give testimony without repercussions.
More Liberal Interpretations
For over a decade, the New York City Human Rights Law has required that courts liberally interpret it to protect employees’ rights and courts have obliged. The reform package requires that courts do the same with the State Human Rights Law.
This provision invites courts to further expand the protections of the State Human Rights Law beyond what is expressly written in the amendments. As a result, there will be a period of unpredictability in the law as courts accept this invitation.
More Time to File Claims
The amendments extend the statute of limitations for filing a charge of discrimination with the State Division of Human Rights to three (3) years, up from one year. Employees already had three years to file lawsuits in court under both the State and City Human Rights Laws, so the practical effect may not be great, except that it may result in more filings with the State Division of Human Rights.
More Restrictions on Arbitration
The amendments prohibit the use of arbitration agreements in regard to all employment discrimination claims. Notably, federal courts have thus far not been unreceptive to state laws imposing restrictions on the use of arbitration agreements for certain types of claims because the Federal Arbitration Act strongly favors enforcing such agreements.
More Damages and Attorneys’ Fees
The amendments allow for the prevailing employee in a discrimination claim to win, in addition to compensatory damages and back pay, punitive damages and attorneys’ fees. This change greatly increases the potential value of claims under the State Human Rights Law.
Amendments Begin Going Into Effect on October 11, 2019
Governor Cuomo signed the bill enacting the amendments on August 12, 2019. Most of the changes will go into effect on October 11, 2019. Employers with less than four employees will become subject to the law on February 8, 2020. The extension of the statute of limitations will go into effect on August 12, 2020.
Paul P. Rooney is a Partner at Ellenoff Grossman & Schole LLP. He specializes in employment law and civil litigation, and advised clients about their legal rights and responsibilities, drafts employment agreements, handbooks, and policies, and performs employment-related corporate due diligence. His cases have included numerous collective actions under The Fair Labor Standards Act, and claims under Title VII of the Civil Rights Act of 1964, and The New York State and City Human Rights Laws. Mr. Rooney has also litigated cases involving covenants not to compete, claims of breach of contract and breach of fiduciary duty, and defamation. Mr. Rooney can be reached at (212) 370-1300 or prooney@egsllp.com.
