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July 3, 2019

#MeToo Continues Gaining Momentum as NYS Legislature Passes New Employment Discrimination Protections

On June 19, 2019, the NYS Legislature passed legislation including the most comprehensive employment discrimination protections in the country, specifically addressing sexual harassment in the workplace. Governor Cuomo has not yet signed the legislation into law but is expected to do so shortly. The key changes to the NYS Human Rights Law under this bill are as follows:

  • Elimination of the “severe or pervasive” requirement for demonstrating sexual harassment hostile work environment claims
  • Weakening of the Faragher/Ellerth affirmative defense by eliminating a defense for employers if an individual does not follow the employer’s policy or make an internal complaint
  • Extension of the statute of limitations to file sexual harassment claims with the NYS Division of Human Rights from one year to three years
  • Allowing plaintiffs to recover punitive damages
  • Allowing plaintiffs to recover attorneys’ fees in all employment discrimination cases

The most significant change is the elimination of the “severe or pervasive” requirement for proving sexual harassment hostile work environment claims. Under the current law, a plaintiff is required to provide facts demonstrating the harassment they suffered was sufficiently “severe or pervasive” enough to alter the terms and conditions of their employment so as to create an abusive work environment. Under the new law, plaintiffs would only need to demonstrate they were treated “less well” than other employees because of their gender, making it much easier for plaintiffs to prove they suffered unlawful harassment. Although the “severe or pervasive” requirement remains under applicable federal law, that will provide little solace for employers facing sexual harassment claims in New York State.

The punitive damages provision is significant as well. Although federal law already allows plaintiffs to recover punitive damages, those damages are capped based on how many employees the defendant-employer employs. In contrast, the new law’s punitive damages provision would open employers up to uncapped punitive damages awards.

The bill also allows successful plaintiffs to recover attorneys’ fees under the Human Rights Law. Historically, attorneys’ fees were only recoverable under the Human Rights Law for housing discrimination cases. In 2016, however, the law was amended to allow for the recovery of attorneys’ fees in sex discrimination cases––including sexual harassment. The new law would extend attorneys’ fees awards to successful plaintiffs alleging and proving other forms of discrimination prohibited under the Human Rights Law such as race, disability, and age discrimination.

As a result of the anticipated changes to the NYS Human Rights Law, we expect there to be an increase in the number of discrimination claims, particularly sexual harassment claims. Therefore, employers must ensure their employees are properly trained on the prevention of discrimination, harassment, and retaliation and that their policies are up to date and fully comply with applicable law.

If you have any questions regarding the content of this alert, please contact Cassandra Santoro, associate, at csantoro@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

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