Category: State Law Alerts

On August 12, 2019, New York Governor Andrew Cuomo signed legislation (A.B. 8421) increasing protections under the state’s anti-discrimination law as follows:

• Effective August 12, 2019: every employer must provide employees, in writing in English and in the language identified by each employee as their primary language, at the time of hire and at every annual sexual harassment prevention training provided, a notice containing the employer’s sexual harassment prevention policy and the information presented its sexual harassment prevention training program.
• Effective October 11, 2019:
  • A private employer is defined as any person, company, corporation, labor organization, or association.
  • Mandatory arbitration clauses related to discrimination are prohibited and nondisclosure agreements related to discrimination are prohibited. Any nondisclosure agreement entered into on or after January 1, 2020 that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable unless it notifies the employee or potential employee that it does not prohibit them from speaking with law enforcement, the federal Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney.

The state’s harassment provisions are expanded as follows:

• It is unlawful for an employer to subject any individual to harassment because of their age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status (protected status), for opposing illegal behavior, or for filing a complaint, regardless of whether the harassment would be considered severe or pervasive under precedent applied to harassment claims. Domestic workers are afforded these protections as well.
• Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in one or more of those protected categories. Unlawful discriminatory practices relating to non-employees are expanded, as well, as opposed to only protecting non-employees against sexual harassment.
• The fact that the individual did not complain about the harassment to the employer is not determinative of whether the employer is liable.
• An employee is not required to demonstrate the existence of an individual to whom the employee’s treatment must be compared.
• It is an affirmative defense to liability that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.

Effective February 8, 2020, the state’s Human Rights Law (at N.Y. Exec. Law § 292) extends its coverage to all employers within the state, as opposed to excluding those with fewer than four employees.

Effective August 12, 2020, complaints of sexual harassment in employment must be filed within three years after the alleged unlawful discriminatory practice.

Read NY A.B. 8421