A bill awaiting the expected signature of NY Governor Andrew Cuomo is going to make the lives of workplace discrimination victims much easier with comprehensive reforms of and new additions to existing law.
Last month, the New York State Assembly passed a bill to strengthen the protections and rights of those who have been subjected to workplace discrimination and harassment. If signed into law, this bill will make the legal process surrounding discrimination and harassment less secretive and more inclusive.
Employers will no longer be permitted to require mandatory arbitration or non-disclosure agreements in settling a lawsuit of discrimination or sexual harassment unless the complainant gives their willing consent, or Mondaq puts it: “unless expressly requested by the employee or otherwise inconsistent with federal law.”
Other protections for victims of discrimination are boosted, too:
- If it becomes law, the bill will implement a new standard for proving harassment in the workplace: rather, complainants will need to show that the harassment rose above “petty slights or trivial inconveniences”
- Employers will have to present their sexual harassment prevention policy and training in the primary language of their employees and English
Harassment based on any class which is already protected under the New York State Human Rights Law will be outlawed. Protected classes include:
- An employee’s age
- National origin
- Sexual orientation
- Gender identity or expression
- Military status
- Predisposing genetic characteristics
- Familial status
- Marital status
- Domestic violence victim status
- Someone who has filed a complaint (retaliatory)
- The statute of limitations for filing a sexual harassment complaint with the New York Division of Civil Rights will be extended from 1 year to 3 years
- The Faragher-Ellerth defense will no longer be accepted as “determinative evidence for employer liability”—meaning, even if an employer can show that employee did not use internal company reporting procedures to report the harassment, that will not preclude the employer from liability.
- The defendant must remit the attorney fees of the plaintiff if the plaintiff wins their claim; if the defendant wins, the defendant has to show the action was frivolous in order for the plaintiff to have to pay their attorney fees
- Under the bill, non-employees are protected as well: “the law expands protections to domestic workers and independent contractors regarding all forms of harassment and discrimination,” as the National Law Review states.
- An employer will no longer be able to use a “comparator treatment” defense
If this bill is indeed signed into law by Governor Cuomo, as it is widely expected to be, much of it would take effect 60 days later, including the mandatory arbitration and non-disclosure agreement provisions and the attorney fee requirement.
As Governor Cuomo has stated, this will give New York one of the strongest laws against sexual harassment and discrimination in the workplace. National Law Review reports, however, that it is unclear at this point how the courts will interpret the soon-to-be law.
One recent decision by a federal judge recently quashed a previous attempt by New York to ban mandatory arbitration of sexual harassment claims. Judge Cote ruled that federal law which “requires courts to enforce arbitration agreements according to their terms” preempts the state law which tried to outlaw such arbitration, according to the National Law Review. How or if this will affect the recently passed bill is unclear.
Overall, this bill creates a more inclusive environment in the law for victims of discrimination. Not only through making company policies more accessible by requiring them to be available in employees’ native languages, but also by outlawing harassment based on any protected class. This is an important acknowledgment that while sexual harassment is a widespread and prevalent form of discrimination, it is far from the only one.
Moreover, by extending the statute of limitations, victims who might need more time to process what happened to them will get this much-needed healing time during which they can decide whether or not to report to the NY Division of Human Rights. The previous standard for proving harassment cases, “severe or pervasive,” put a burden on the victim to show that what they had suffered reached this high bar. By lowering it so that the victim simply has to show that it rose above what one might consider petty or trivial, the NY law acknowledges that anything past this bar should not be tolerated in the workplace.