Less than one year after sexual harassment training became mandatory under New York State and New York City law, the state legislature has enacted extensive reforms to anti-discrimination laws. Here’s what it means for human resources and compliance professionals and your sexual harassment training and prevention initiatives, and its potential impact on your workplace culture.
Changes to Harassment Laws in New York
If you are an employer doing business or expecting to do business in New York, you need to be aware of the following changes:
Harassment Standards Set by Federal Law No Longer Govern
Effective 60 days after the legislation is signed into law, claims under the New York State Human Rights Law (NYSHRL) will be subject to a less exacting standard, which will not require showing that harassment is “severe or pervasive.” Instead, the question will be whether the harassment “subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in one or more” protected categories. Under the New York City Human Rights Law (NYCHRL), New York City employers have been subjected to a less exacting standard for some time. However, employers with operations elsewhere in the state soon will be subject to a standard that differs significantly from the standard used to determine whether an actionable hostile work environment claim exists under Title VII of the Civil Rights Act of 1964. While we need to await clarification on this standard through case law, the legislation provides that employers may defend against clams by establishing that the harassing conduct does not rise above what a reasonable individual with the same protected characteristics would deem to be “petty slights or trivial inconveniences.”
The New Standards Will Apply to All Protected Categories
Effective 60 days after the legislation is signed into law, these new standards will apply to all categories of harassment recognized by the NYSHRL. The protected categories under New York law are far more numerous than under federal law, and include:
- National origin
- Sexual orientation
- Gender identity or expression
- Military status
- Predisposing genetic characteristics
- Familial status
- Marital status
- Domestic violence victim status.
In addition, these new standards cover individuals who have opposed a forbidden practice, filed a complaint, or testified or assisted in a proceeding under the law.
A Failure to Complain Will Not Preclude Liability
The legislation expressly provides that the fact that the individual did not make a complaint about harassment “shall not be determinative” of whether an employer may be found liable for harassment under the NYSHRL. Additionally, the legislation eliminates any requirement that “an employee must demonstrate the existence of an individual to whom the employee’s treatment must be compared.” This also takes effect 60 days after the legislation is signed into law.
Employer Size Will Soon Cease to Matter
While employers with fewer than four persons were subject to the provisions of NYSHRL only with respect to claims of sexual harassment, the new legislation provides that the term employer “shall include all employers within the state.” Thus, even the smallest businesses will need to understand and comply with the anti-harassment laws. This change will take effect 180 days after the legislation is signed into law. However, effective 60 days after the legislation is signed into law, the new standards governing harassment will apply to all domestic workers.
It’s Not Just About Employees
The legislation expands all anti-discrimination prohibitions to independent contractors, consultants, vendors, subcontractors, and persons providing services pursuant to a contract in the workplace, and the employees of such individuals. Previously, only the prohibitions against sexual harassment applied to such “non-employees.” This amendment will take effect 60 days after the legislation is signed into law.
Sexual Harassment Policies and Training Materials Must Be Distributed In Writing
The amended law includes more robust requirements about what must be provided to employees, and at what frequency. Specifically, the sexual harassment prevention policy must be provided (1) at the time of hire and (2) at every annual sexual harassment prevention training. Previously, the law required that the policy be provided in writing, but did not specify when this should occur.
In addition, the information presented in the sexual harassment training program must now be provided in writing. Further, these materials must be provided in both English and the language identified by the employee as that individual’s primary language, so long as the Human Rights Commissioner has made materials available in that language.
These changes take place immediately upon the enactment of the law.
The Potential Consequences of Non-Compliance Have Increased Significantly
Along with the above changes, the legislation includes several new provisions which increase the potential adverse consequences of non-compliance with the new laws. For example, the Faragher-Ellerth defense, which allows employers to escape liability in certain circumstances when they can demonstrate that the employer exercised reasonable care to prevent and promptly correct harassing behavior and the employee unreasonably failed to take advantage of the preventive or corrective opportunities offered by the employer, will not apply to claims brought under the NYSHRL that accrue on or after 60 days after the legislation is signed into law. Instead, the new law provides that the fact that an individual did not make a complaint about the harassment “shall not be determinative” of the liability of the employer, licensing agency, employment agency or labor organization.
In addition, for all claims of employment discrimination that accrue on or after 60 days after the legislation is signed into law, reasonable attorneys’ fees may be awarded. Currently, attorneys’ fees only could be awarded for claims where sex is a basis of such discrimination. Additionally, the amendments would allow punitive damages to be awarded in claims against private employers.
Finally, non-disclosure clauses can be utilized to settle employment discrimination claims only if the complainant receives 21 days to consider such term, along with 7 days following execution to revoke the agreement. Currently, this requirement is applicable only when the factual foundation of the claim involves sexual harassment. The legislation also incorporates a new prohibition against any term that restricts a complainant from initiating, testifying, assisting, complying with a subpoena from, or participating in an investigation conducted by a local, state or federal agency or filing or disclosing facts necessary to receive unemployment insurance, Medicaid, or any other public benefit. These changes take effect 60 days after the legislation is signed into law.
What These Changes Mean For Harassment Prevention Training and Other Prevention Initiatives
Although employers with operations in New York should have already identified programs to meet the state’s October 9, 2019 sexual harassment training deadline, these amendments highlight the need to again review and update policies, practices, and the materials used to educate individuals who work in New York.
In addition to complying with the new requirements concerning the distribution of policies and training materials, there are several additional measures that employers doing business or expecting to do business in New York may wish to consider taking the following actions:
- Ensure Written Policies and Training Materials Address All Forms of Harassment: Although employers in New York are required only to adopt written policies and provide training about sexual harassment, employers may wish to update these materials to ensure that they appropriately address all forms of workplace harassment covered in the amended laws.
- Review Reporting Mechanisms: The absence of a complaint may not doom a legal claim, but the reality remains that most individuals will make some sort of a complaint or report about harassment before pursuing external remedies. Accordingly, employers should ensure that the reporting channels are relevant and responsive, and where possible, seek feedback from employees and others about opportunities to improve these mechanisms so that they will actually be used. Additionally, employers may wish to provide employees and other individuals who might use these channels with clear and accurate information about what to expect once a report is made, and implement measures to ensure those responsible for receiving reports actually meet these expectations by appropriately responding to and investigating reported concerns.
- Prepare Supervisors and Managers: Unlike some other jurisdictions, such as California, New York does not mandate additional training hours for supervisors and managers. However, as these new laws establish standards and create obligations that run counter to the “conventional wisdom” that many individuals who hold supervisory or management positions may have acquired, employers may wish to ensure that there are sufficient programs to educate individuals holding supervisory or management positions about practical strategies to prevent or recognize situations that could adversely impact productivity and result in potential legal exposure.
- Promote Bystander Intervention: For now, only those employers subject to the NYCHRL are required to provide bystander intervention training as part of the sexual harassment curriculum. However, all employers in New York may wish to promote meaningful conversation about the role that every member of the workforce who witnesses or otherwise learns about potential harassment or retaliation targeted towards others can play in interrupting or reporting such behavior.
In addition to taking the above actions, employers must understand how the new laws are likely to change their workplace culture and norms.
The Bottom Line
Although these new laws focus on legal requirements, reading between the lines indicates that the New York state legislature seeks to do more than require organizations to stay on the right side of the law—they are beating the drum of “culture over compliance” loud and clear.
At their core, these changes—particularly the change in the legal standards and the more relaxed standard on reporting—is a recognition that employers are better off focusing on inclusion, respect, and truth-telling. With a culture that values this—rather than mere legal compliance—employees are more likely to bring concerns forward, and will trust that their leaders will fairly and swiftly looking into allegations of misconduct and will resolve any issues with an emphasis on both actual and perceived fairness. If organizations are looking for ways to minimize legal risk, they would be wise to continue to focus on the proven methods that come from creating a healthy culture, rather than only checking the “we complied with the law” box.
For an overview of the changes, download our New York Sexual Harassment Law Summary Sheet.