Governor Cuomo Signs Off On Groundbreaking Harassment Legislation

Governor Cuomo signed the groundbreaking harassment legislation that we previously covered here on August 12, 2019. The law profoundly alters the landscape of harassment claims in New York and how employers should be prepared to handle them. Key provisions include eliminating the “severe or pervasive” standard for discriminatory and retaliatory harassment cases, prohibiting mandatory arbitration for all discrimination claims (not just sexual harassment), and banning non-disclosure agreements for all discrimination claims.

These various provisions have different effective dates. While employers should keep an eye on all effective dates, employers should take care to review the provisions that are effective immediately or within the next sixty days:

Effective Immediately

• The law expands the definition of “employer” to include all employers within New York State, regardless of size. The law previously applied only to employers with four or more employees.

Effective October 11, 2019

• The “severe or pervasive” standard that courts have applied for thirty years is eliminated. The new standard is that an “unlawful discriminatory practice” will be found where the harassment “subject[s] an individual to inferior terms, conditions or privileges of employment” because of the individual’s membership in a protected class. In practical terms, this means that any unwelcome treatment on the basis of a protected characteristic, regardless of its severity, may provide an employee with a legal claim against his/her employer.
• Employers cannot rely upon the Faragher-Ellerth defense to avoid liability.
• The statute of limitations for filing sexual harassment claims with the New York State Division of Human Rights is expanded from one to three years.
• The law prohibits mandatory arbitration for all types of discrimination claims, not just claims involving sexual harassment.

With these significant changes, employers should review everything that might be impacted by the new law, and remember, employers can never offer too much training. Work with counsel to develop a holistic approach. A piecemeal strategy will not work with this new law due to the myriad of significant changes. Get it wrong and open the floodgates to a new set of claims in uncharted territory.