By Peter J. Weishaar

Last September, we wrote about the sweeping rules enacted to prevent sexual harassment.  All employers in New York are now required to adopt a sexual harassment policy that meets or exceeds the minimum standards set by this legislation, and starting next month, all employers must begin conducting annual sexual harassment training. 

This summer, the Governor signed legislation that significantly amends New York anti-discrimination laws, building on the rules enacted last year.  These amendments provide further protections to victims of sexual harassment, and extend protections to other protected classes which will impact how discrimination claims are handled under New York law.

Definition of Employer.  The definition of “employer” under the Human Rights Law was expanded to include “all employers within the state.”  Previously, employers with fewer than four employees were not covered.  The law now covers all employers within the state, for all forms of discrimination and harassment in the workplace.

Easier Standard for Harassment.  Perhaps the most significant change made by this legislation is the change made to the elements for claims of harassment (which includes claims of 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, domestic violence victim status, or because the individual has opposed any practices forbidden under the Human Rights Law).  The law eliminates the “severe or pervasive” standard for proving harassment, and also specifically provides that the fact that an individual did not make a complaint about the harassment to his or her employer “shall not be determinative” of whether such employer shall be liable. 

Victims of harassment now need only demonstrate that the allegedly harassing conduct “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more [of the listed] protected categories.”  Such conduct would be unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.”  This is different than the standard that applies to similar claims brought under federal law. 

Defendants will still have an affirmative defense, but the employer must now prove 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.”

Liberal Construction.  While the Human Rights Law already required its provisions to be construed liberally, the amendments clarify that this liberal construction is required regardless of whether federal civil rights laws—including those laws with provisions worded comparably to the provisions of the Human Rights Law—have been so construed.  Exceptions are also required to be narrowly construed “in order to maximize deterrence of discriminatory conduct.”

Expansion of Protections for Non-Employees.  The amendments also expand the protections available to non-employees.  Previously, the Human Rights Law was expanded to provide a remedy to non-employees who were the victim of sexual harassment.  These protections have now been expanded to cover all forms of unlawful discrimination against non-employees in the workplace. 

Punitive Damages and Attorney’s Fees.  Another significant change is the extension of the punitive damages and attorney’s fees remedies.  Both remedies are now available to prevailing plaintiffs in all discrimination cases under the Human Rights Law, not just those based on sex discrimination. 

Arbitration and Non-Disclosure Clauses Prohibited.  The amendments prohibit mandatory arbitration clauses related to discrimination, and prohibit non-disparagement provisions from preventing employees from disclosing certain factual information in certain situations.  Non-disclosure agreements are also prohibited to the extent they purport to prevent disclosure of the underlying facts and circumstances of the claim unless the condition of confidentiality is in the plaintiff’s preference in all discrimination cases.  This should not prevent employers from including non-disclosure provisions in settlement agreements which restrict disclosure of the fact and amount of any settlement.

Filing Deadline Extended.  Another significant change was the extension of the time for a victim of sexual harassment in the workplace to file an administrative complaint with the New York State Division of Human Rights.  Previously, complaints had to be filed within one year.  Now victims of sexual harassment will have three years to file a claim. 

Conclusion.  While some of these changes became effective immediately, other provisions will not become effective until months from now.  We are continuing to monitor the changes being made in this area of law.  If you would like to schedule a consultation to talk about how this legislation may impact your business,  please feel free to contact Amy Varel at avarel@mccmlaw.com or 585.512.3519, or Peter Weishaar at pweishaar@mccmlaw.com or 585.512.3542. 

Amy’s employment practice includes advising business clients in regard to various employment-related matters including hiring and firing, wage and hour issues, employment agreements, non-compete agreements and the preparation of employee handbooks.

Peter's employment practice includes the representation of businesses and individuals in matters involving restrictive covenants, non-compete agreements, discrimination, failure to pay wages in State and Federal Courts, and before administrative agencies, including the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission. Peter also writes a law blog, the Rochester Law Review, covering legal developments, cases of interest, and events happening in all of the key areas of his practice.  You can follow the blog on Facebook and Twitter.  

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.