Recent changes to New York’s workplace discrimination and harassment laws will make it significantly easier for employees to win workplace disputes. Long Island and Westchester employers should note – the laws you’ve known, and upon which you’ve built your training programs and policies, will soon strongly resemble the more stringent New York City rules. To summarize the changes, it’s fair to say that the new laws provide significantly greater protections to individuals who allege workplace discrimination or harassment while also stripping employers of several key tools in their defense against those lawsuits.
Who is an “employer”? The law expands the definition of who is considered an “employer” and thus subject to the new rules. While previous rules only applied to employers with four (4) or more employees, the new laws apply to all employers in the State – even those with just a single employee.
Annual sexual harassment prevention training. Employers are now required to conduct annual sexual harassment prevention training and to provide all training materials to their employees in both English and the employees’ primary language.
Written sexual harassment policies. Employers must have a written sexual harassment policy and provide a copy of that policy to their employees.
Lower hurdle for plaintiffs. Previously, plaintiffs would have to show that the alleged workplace harassment was “severe or pervasive” – a relatively high standard. Not anymore. Now, any form of harassment is unlawful if it subjects an individual to “inferior terms, conditions, or privileges of employment” because of that person’s membership in a protected class.
No more Faragher-Ellerth defense. Under the Faragher-Ellerth defense, employers could avoid liability for unlawful harassment by demonstrating that they maintain an effective complaints procedure, that the employee unreasonably failed to utilize it, and that no adverse employment action occurred. Under the new rules, the fact that an employee failed to formally complain of workplace harassment will NOT be determinative of the employer’s liability.
Financial incentives for prevailing plaintiffs. In a move that will almost certainly increase the number and frequency of lawsuits filed, the new rules award prevailing plaintiffs both punitive damages and attorneys’ fees.
Liberal interpretation of laws. The new rules come with a mandate to the courts and tribunals to interpret the laws governing harassment and discrimination liberally. In addition to making it easier to plaintiffs to maintain a claim, these changes make it infinitely more difficult for employers to understand the legal framework of these claims and protect themselves accordingly.
More time for plaintiffs to sue.
The new laws extend the period of time in which complainants must file a complaint with the New York State Division of Human Rights from one (1) year to three (3) years.
Limited confidentiality. Once the new laws go into effect, settlement agreements can no longer include a confidentiality provision barring an employee from disclosing the facts and circumstances underlying the claim. However, the parties can still include such a provision if the employee specifically requests it.
No more mandatory arbitration. Under the new laws, any provision in an employment agreement that requires mandatory arbitration – a common provision – is unenforceable. While previous rules prohibited such provisions with respect to sexual harassment claims, the news laws significantly expand the scope of this prohibition.
What can employers do? To say that these changes will have a major impact on employers is an understatement. With these plaintiff-friendly changes in effect, it’s very likely that there will be an increase in lawsuits and findings of liability. While the changes are drastic, employers who are knowledgeable about the new rules and regulations will be able to navigate the new workplace environment and best protect themselves.
Employers must understand and implement the rules concerning mandatory sexual harassment prevention policies and training. Employers should revisit their training manuals, written policies, and handbooks to ensure that they are compliant with the new laws.
Please do not hesitate to contact your attorneys at Weinstein + Klein to discuss these changes and the steps you can take to protect your business from liability. ABOUT WEINSTEIN + KLEIN P.C.
Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, litigation, and business matters. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.