New York Vastly Expands Workplace Harassment and Discrimination Protections
In a flurry of activity, the New York state legislature has passed, and the Governor has indicated that he will sign, a number of new measures aimed at expanding protections against harassment and discrimination in the workplace, as follows:
- Senate Bill 6577. This bill amends the New York State Human Rights Law in a number of significant ways, including the following:
- The law will now apply to all employers, regardless of size.
- Prohibitions on harassment are specifically set forth in the law, rather than being implied.
- In contrast to well-established federal law, harassment need not be “severe or pervasive” in order to serve as the basis of a legal claim. Rather, the employee need only show that he or she was subjected to “inferior terms, conditions or privileges of employment.”
- The Faragher-Ellerth defense, by which employers can avoid liability for co-worker harassment if they attempted to prevent and promptly correct any harassment and the employee unreasonably failed to take advantage of the preventive or corrective measures, is eliminated. Rather, liability is avoided only if “the harassing conduct does not rise above the level of what a reasonable victim of discrimination would consider petty slights or trivial inconveniences.”
- Employees can now recover punitive damages and attorney’s fees against private employers.
- The time period for reporting claims of discrimination or harassment to the New York State Division of Human rights is extended from one year to three years.
- Non-employees, such as contractors, vendors, consultants and other service providers, can sue the company for discrimination or harassment.
- Non-disclosure provisions in settlement/separation agreements resolving discrimination or harassment claims are barred unless they are the “preference of the complainant.” This requires that the provision be in plain English or the primary language of the complainant. In addition, the complainant must be given 21 days to consider the provision, and seven days in which to revoke any signed agreement containing such a provision.
- Senate Bill 6549. Employers will be prevented from requesting, either orally or in writing, or relying upon an applicant’s wage or salary history in determining whether to offer employment or the salary for the position.
- Senate Bill 5248. The bill requires equal pay for “substantially similar work” and prohibits pay differentials based on age, race, creed, color, national origin, sexual orientation, gender identity and expression, military status, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.
- Senate Bill 6209. Following in the footsteps of the New York City Council, the bill prohibits race discrimination based on natural hairstyles. The definition of “race” is amended to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles” (e.g. braids, locks, and twists).