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New York Lawmakers Pass Game-Changing Reforms to State Bias Laws

By Melissa Osipoff and Michael Marra

06/23/2019

Still grappling with the expansive sexual harassment reforms passed last year, New York businesses and employers will soon need to manage through yet another expansive suite of amendments that will continue the state's ongoing implementation of stronger, and more burdensome, anti-harassment and anti-discrimination laws. 

On the last day of its legislative session, the New York State Senate and Assembly passed sweeping reforms meant to overhaul the state's antidiscrimination laws. Governor Andrew Cuomo, who advocates for more robust workplace harassment laws, is expected to sign the bill without delay. Once enacted, the amendments will impact every workplace in New York. 

The legislation is an omnibus bill that amends different provisions of the New York State Human Rights Law (NYSHRL), the General Obligations Law, the Civil Practice Law and Rules, and the New York Labor Law. Together, these amendments provide for significant changes to New York's already expansive workplace harassment laws. Here are the specific requirements. 

Small Employers

Currently, the NYSHRL only applies to New York employers with four or more employees, except for claims involving discrimination based on sex, which currently apply to all sized employers. Under the amended law, the NYSHRL will apply to even the smallest New York employers, effective 180 days after the bill becomes law. The amendment will apply only to claims filed on or after the effective date.

Harassment Claims

Under long-standing precedent, conduct must be "severe or pervasive" to be considered harassment, which is a relatively high standard. The amendments will eliminate the current standard for sexual harassment claims—as well as harassment and retaliation claims alleging misconduct based on any protected characteristic.  

Going forward, the law significantly lowers the bar for workers to establish a claim for harassment based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status or because the individual has opposed discrimination or filed a complaint, testified or assisted in any proceeding regarding discrimination.

Additionally, the amendments erode a longstanding employer defense to harassment claims. Known as the Faragher-Ellerth defense (based on two U.S. Supreme Court decisions from 1998), an employer is able to defeat a federal harassment claim if the employee failed to take advantage of preventative or corrective opportunities provided by the employer, such as failing to report alleged misconduct despite the employer's maintenance of an appropriate reporting mechanism. Under the amendments, the fact that an employee did not make a complaint about the harassment "shall not be determinative" of an employer's liability, bringing the NYSHRL in line with its New York City counterpart.

Finally, the amendments codify a narrow affirmative defense for employers, where the employer can establish that the alleged harassment does not rise above the level of "petty slights or trivial inconveniences," viewed through the lens of a reasonable victim of discrimination with the same protected characteristic as the complainant.  

These provisions will take effect 60 days after the bill becomes law and will not apply retroactively to previously filed claims. There is already an amendment to this bill that has been passed by the Senate, but not yet the Assembly, that would clarify that the new laws will only apply to claims that accrue after the effective date. The Assembly's failure to act will create a strong likelihood that informed employees whose claims are based wholly on pre-amendment conduct will simply wait to file so as to gain the benefits of the amendments.

Nonemployees

Last year, New York expanded coverage of the state's sexual harassment laws to nonemployees in the workplace. The new legislation goes further, extending all of the state's anti-harassment laws to nonemployees. Businesses will now be liable for harassment directed towards contractors, subcontractors, vendors, consultants or any other person providing services in the workplace, so long as the business, its agents or supervisors "knew or should have known" the nonemployee was harassed in the workplace and failed to take appropriate corrective action. This provision will take effect 60 days after the bill is enacted and will only apply to claims filed after the effective date.

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