Inspired by the #MeToo and #TimesUp movements, the NYS legislature explained it “wanted to translate the work and goals of those movements into policy to enact further protections for all workers—of all protected categories—against all types of harassment (not just sexual harassment).” As a result, on August 12, 2019, Governor Cuomo signed legislation enacting sweeping new workplace harassment protections. The legislation provides broader protection to employees of all protected categories who have been victims of harassment in the workplace, lowers the burden for employees to plead and prove that conduct in the workplace amounts to harassment under NYS law, and eliminates certain defenses available to employers under federal law. The first changes under the new law will take effect beginning on October 11, 2019.
It is not possible to discuss all of the new provisions in this newsletter, so we focus here on the three that people are talking about most:
- The NYS Human Rights Law now expressly prohibits harassment based on any protected characteristic, not just sexual harassment. Specifically, employers are prohibited from subjecting any individual to harassment “because of an individual’s age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic-violence-victim status.”
- The new law changes the standard for all harassment claims—not just sexual harassment—in New York State. Previously, consistent with the well-established standard for harassment under federal law, NYS employees had to plead and prove the harassment was “severe or pervasive.” The new standard defines harassing conduct as any conduct that subjects an employee to “inferior terms, conditions, or privileges of employment because of an individual’s membership in one or more of the protected categories.” Furthermore, the employee no longer needs to point to a comparator, or “similarly situated” individual, who was treated more favorably.
- Prior to this legislation, an employee’s failure to report harassing conduct could be used by an employer as a defense to liability. However, the new law eliminates that defense. Now, an employer may be held liable even if the employee never made a complaint or failed to follow the employer’s anti-harassment policy.
Again, there are many more provisions in the law, including changes to the employer coverage threshold, the rights of non-employees to recover against companies for discrimination, the types of damages an employee can recover, and much more.
It is critically important that employers doing business in New York State properly train their staff and ensure their internal policies and practices are up to date and comply with the law.