Significant Amendments to NYS Anti-Discrimination and Anti-Harassment Laws Go Into Effect

S6209a/A7797a

Definition of “race” under the New York State Human Rights Law (NYSHRL) expanded to include “hair texture and protective hairstyles.”

July 12, 2019

A8421/S6577 (as amended by S6594/A8424)

Employers must provide to all employees at the time of hiring and at every annual sexual harassment prevention training a notice in writing containing their sexual harassment prevention policy and information presented at their annual sexual harassment prevention training program.

Such notice must be provided in English and in the language identified by the employee as their primary language, provided that the state’s model policy and training are available in such language.

Aug. 12, 2019

A8421/S6577 (as amended by S6594/A8424)

The NYSHRL must be liberally construed.

Aug. 12, 2019, and only applies to claims accrued on or after this date

S5248-B/A8093a

Expands the Equal Pay Provision under the New York Labor Law to apply to members of all protected classes under the NYSHRL and lowers the burden of proof by not requiring less favorable treatment than a comparator or a showing of a pay differential for “equal work.”

Oct. 8, 2019

A8421/S6577 (as amended by S6594/A8424)

Eliminates the “severe or pervasive” standard for harassment claims under the NYSHRL and instead provides that “harassment,” including retaliatory harassment, is unlawful when an employer subjects an individual to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more [] protected categories.”

Oct. 11, 2019, and only applies to claims accrued on or after this date

A8421/S6577 (as amended by S6594/A8424)

Nondisclosure Agreements (NDAs) are prohibited in any settlement, agreement or other resolution of any discrimination claim unless an NDA is the complainant’s preference and such preference is memorialized in writing and provided to all parties “in plain English, and, if applicable, the primary language of the complainant.”

Further, such confidentiality provisions are void to the extent that they prohibit or restrict a complainant from initiating, testifying, assisting or complying with a subpoena; participating with an investigation by an agency; or filing or disclosing facts when necessary in applying for public benefits.

Oct. 11, 2019

A8421/S6577 (as amended by S6594/A8424)

Elimination of the Faragher-Ellerth affirmative defense for claims brought under the NYSHRL. This defense has been used by employers in cases involving claims of supervisor harassment where no tangible adverse employment action was taken against the complainant and where the employer can show (a) it exercised reasonable care to prevent and correct the harassing behavior, and (b) the complainant unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided or to avoid harm otherwise. 

Oct. 11, 2019, and only applies to claims accrued on or after this date

A8421/S6577 (as amended by S6594/A8424)

Nonemployees (including independent contractors, subcontractors, vendors, consultants, and anyone else providing services) in the workplace are protected from all unlawful discrimination, not just sexual harassment.

Oct. 11, 2019, and only applies to claims accrued on or after this date

A8421/S6577 (as amended by S6594/A8424)

Prevailing plaintiffs and complainants in employment discrimination claims under the NYSHRL in court or before the New York State Division of Human Rights (NYSDHR) may potentially recover punitive damages and reasonable attorney’s fees.

Oct. 11, 2019, and only applies to claims accrued on or after this date

A8421/S6577 (as amended by S6594/A8424)

Pre-dispute mandatory arbitration agreements for all discrimination claims are prohibited “[e]xcept where inconsistent with federal law.”

Note: We previously indicated that this law may lack any practical application, given the exception under the law and the strong preference for arbitration demonstrated in the Federal Arbitration Act (FAA). Indeed, Southern District of New York Judge Denise Cote recently enforced a pre-dispute arbitration agreement with regard to a hostile work environment claim citing the FAA. 

Oct. 11, 2019

A8421/S6577 (as amended by S6594/A8424)

Agreements that prevent the disclosure of “factual information related to any future claim of discrimination” are void and unenforceable unless the agreement notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the Equal Employment Opportunity Commission (EEOC), the NYSDHR, a local commission on human rights, or an attorney retained by the employee or potential employee.

Any contract or agreement entered between an employer and employee into on or after Jan. 1, 2020

S6549/A5308b

Salary history inquiry ban prohibits employers from, among other things, relying on or requesting an applicant’s or current employee’s wage or salary history.  

Jan. 6, 2020

A8421/S6577 (as amended by S6594/A8424)

The NYSHRL applies to all private employers regardless of the number of employees.

Feb. 8, 2020

A8421/S6577 (as amended by S6594/A8424)

Complainants have three years to file a complaint of sexual harassment under the NYSHRL with the NYSDHR.

Aug. 12, 2020