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On August 12, 2019, Governor Cuomo signed legislation that expanded again the rights of employees in New York. Less than one year earlier, the State issued final guidance regarding significant changes made to its sexual harassment prevention laws. There were many important changes in 2016 too.

Here are the 2019 changes that apply to all employment discrimination claims:

ALL EMPLOYERS ARE COVERED. Employers who employ less than four (4) people can discriminate legally against employees based on their membership in certain protected classes (e.g., race and religion). EFFECTIVE FEBRUARY 8, 2020, no employer in New York (regardless of the number of employees they employ) may discriminate against an employee based on their membership in ANY protected class.Protected classes in New York include, but are not limited to, race, religion, sex, national origin, disability, age, marital status, military status, sexual orientation, gender identity, predisposing genetic characteristic, domestic violence victim or familial status.

DOMESTIC WORKERS AND NON-EMPLOYEES ARE NOW PROTECTED FROM ALL FORMS OF EMPLOYMENT DISCRIMINATION. EFFECTIVE OCTOBER 11, 2019, domestic workers and non-employees (e.g., contractors, subcontractors, vendors, etc.) are protected from all forms of unlawful employment discrimination. Until that change, domestic workers and non-employees were protected from unlawful sexual harassment but no other forms of unlawful discrimination (e.g., harassment based on race or religion).

PUNITIVE (AKA PUNISHMENT) DAMAGES ARE AVAILABLE. For the first time, EFFECTIVE OCTOBER 11, 2019, private employers may be held liable for punitive (aka punishment) damages in discrimination cases. An employee is not entitled to an award of punitive damages unless she can show that the actions of her employer were “evil or outrageous.” This is a difficult standard to meet.

RESTRICTIONS ON NON-DISCLOSURE CLAUSES ARE EXPANDED. The 2018 changes included restrictions regarding the use of non-disclosure clauses when sexual harassment claims were settled. EFFECTIVE OCTOBER 11, 2019, these restrictions apply to the settlement of ALL claims of employment discrimination.

REQUIRED LANGUAGE IN NON-DISCLOSURE CLAUSES. EFECTIVE JANUARY 1, 2020, non-disclosure clauses that prevent “the disclosure of factual information related to any future claim of discrimination” must include plain language confirming that employees may: (a) file a complaint of harassment or discrimination with a government law enforcement agency; (b) testify or otherwise participate in a government investigation; and (c) may disclose facts necessary to apply for and receive unemployment insurance benefits, Medicaid, or other public benefits.

EMPLOYERS MUST PAY ATTORNEYS’ FEES INCURRED BY EMPLOYEES WHO PREVAIL IN A LEGAL ACTION AGAINST THEM. EFFECTIVE OCTOBER 11, 2019, an employee who prevails on any employment discrimination claim must be awarded attorneys’ fees. Previously, an employee who prevailed on a claim of sex/gender discrimination could have been awarded her attorneys’ fees in the discretion of the decisionmaker.

AN EMPLOYEE MUST PAY ATTORNEYS’ FEES INCURRED BY THE EMPLOYER IF THEIR COMPLAINT WAS FRIVILOUS. EFFECTIVE OCTOBER 11, 2019, a prevailing employer may recover attorneys’ fees it incurred from an employee IF it establishes that the employee’s case was “frivolous.” This is a difficult standard to meet. Previously, this opportunity was available to employers ONLY in a claim of sex/gender discrimination.

Here are the 2019 changes that apply to sexual harassment claims:

LONGER DEADLINE TO FILE CHARGES OF UNLAWFUL SEXUAL HARASSMENT WITH THE NEW YORK STATE DIVISION OF HUMAN RIGHTS [“DHR”]. Currently, the deadline for an employee to file a charge of unlawful sexual harassment with the DHR is one (1) year from the date of the event(s) they want to challenge. EFFECTIVE AUGUST 12, 2020, an employee may file such a charge within three (3) years from the date of the action(s) they want to challenge.

IT IS EASIER FOR EMPLOYEES TO PROVE UNLAWFUL SEXUAL HARASSMENT. Before October 11, 2019, a plaintiff alleging unlawful sexual harassment was required to prove that the salient conduct was “severe or pervasive.” EFFECTIVE OCTOBER 11, 2019, an employer will be liable for harassing conduct motivated by sex so long as it rises above what a reasonable person would consider “petty slights or trivial inconveniences”.

AN IMPORTANT DEFENSE FOR EMPLOYERS HAS BEEN UNDERMINED. Before October 11, 2019, an employer could defeat a sexual harassment claim if (a) it attempted to prevent and correct the harassing conduct through, for example, an effective internal complaint procedure; and (ii) the employee unreasonably failed to take advantage of it. EFFECTIVE OCTOBER 11, 2019, the fact that an employee did not make an internal complaint about harassment “shall not be determinative” of whether the employer is liable. That said, an employer can prevail if it can establish that “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences”. I expect this defense rarely will be successful.

Please contact us if we can help you navigate these changes.

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