United States: New York Passes Expansive Discrimination Laws Requiring Employers To Immediately Review Their New-Hire Policies And Employment-Related Contracts

The patchwork of state employment laws just got a few more patches. On July 12th and August 12th (Senate Bill S6577), Governor Cuomo signed two employment-focused laws that added a number of updates to the New York State Human Rights Law (NYSHRL). The first law, which took effect on July 12 on signature by the Governor, bans race discrimination on the basis of hair or hairstyle and other "traits historically associated with race, including but not limited to, hair texture and protective hairstyles". The term "protective hairstyles" includes hairstyles such as braids, twists, and locks. The latter law strengthens state protections for sexual harassment and employment claims in general. Below is a summary of what requirements of the laws are effective now and what are coming soon:

Sexual Harassment / Hostile Work Environment

  • (Eff. Immediately – Notice): New York employers must provide employees with a notice containing the employer's sexual harassment prevention policy and "the information presented at the employer's training program" both (1) at the time of hire and (2) at every annual sexual harassment prevention training. (This is also a reminder that New York employers are required to provide their employees annual sexual harassment prevention training.) Further, the notice must be provided in writing in English and in the language identified by an employee as the employee's primary language, if a language other than English.
  • (Eff. Oct. 11, 2019 – Severe or Pervasive Element Removed): In hostile work environment cases, a complainant will no longer have to show that alleged sexual or other workplace harassment was "severe or pervasive" to succeed on a sexual harassment claim under the NYSHRL. Instead, the complainant will only have to show they were subjected to "inferior terms, conditions or privileges of employment" because of their membership in a protected category. Employers will, however, have an affirmative defense to such claims if they can prove that the conduct does not rise above the level of "petty slights or trivial inconveniences." (The element will also still be required to be proven in federal Title VII cases, which could be confusing in cases where NYSHRL and Title VII claims are filed contemporaneously.)
  • (Eff. Oct. 11, 2019 – Faragher-Ellerth Affirmative Defense Removed): The Faragher-Ellerth, which is an affirmative defense employers can argue applies when an employee unreasonably fails to take advantage of an employer's internal complaint procedures, will no longer apply to claims under the NYSHRL. (Employers will still have the Faragher-Ellerth affirmative defense in federal Title II cases, which, again, could be confusing where federal and state claims are filed together.)

Discrimination

  • (Eff. Immediately – Hairstyle Discrimination Prohibited): Employers are prohibited from discriminating on the basis of hairstyles that are associated with race. New York joins California in banning hair discrimination in the workplace. This follows the NYC Commission on Human Rights February 2019 guidance, which was much broader than the New York law as the City protects hairstyles also associated with ethnic or cultural identities.
  • (Eff. Oct. 11, 2019 – Non-Employees Protected from all Forms of Protected Discrimination): All discrimination protections will be extended to non-employees, such as contractors, vendors, consultants, etc. Currently, the law only protects non-employees from sexual harassment, but this extension will include protections against any type of protected category of discrimination under the NYSHRL.

Contracts / Releases / Arbitration Provisions

  • (Eff. Oct. 11, 2019 – Non-Disclosure Provisions Significantly Limited): Employers will not be able to include nondisclosure provisions in any agreement or other resolution of a claim, i.e., a severance agreement or release document that resolves a claim involving any allegation of unlawful discrimination unless it is the complainant's choice.
  • (Eff. Oct. 11, 2019 – Consideration and Revocation Periods Implemented): With respect to any release of an unlawful discrimination claim, a complainant will have to be provided 21 days to consider any such release (New York already has this requirement for sexual harassment releases). If the complainant chooses to sign the agreement after the 21-day consideration period, that fact must be memorialized by all parties. The complainant will then have to be provided an additional 7 days to revoke the agreement. (The 21/7 consideration/revocation period is the same as the 21/7 requirement in non-group termination releases under the federal Age Discrimination in Employment Act with the exception of the newly-added requirement that the parties affirmatively acknowledge that the complainant chose to sign the release after the 21-day consideration period.)
  • (Eff. Oct. 11, 2019 – Prohibition on Mandatory Pre-Suit Arbitration Expanded): The existing prohibition on mandatory pre-suit arbitration of sexual harassment claims will be extended to claims of unlawful discrimination, but only to the extent that is the prohibition is consistent with federal law, meaning that the claims are not pre-empted by the Federal Arbitration Act in the event both laws apply.
  • (Eff. Jan. 1, 2020 – Disclosure of Information Related to Future Claim Prohibited): Any provision in a contract or other agreement entered into on or after January 1, 2020 that prohibits the disclosure of information related to any future claim of discrimination on the basis of any protected characteristic will be unenforceable, unless the provision notifies the employee/applicant that it does not prohibit them from speaking with law enforcement, the EEOC, the New York State Division of Human Rights, a local commission on human rights, or an attorney retained by the employee/applicant.

Damages / Statute of Limitations

  • (Eff. Oct. 11, 2019 – Uncapped Punitive Damages and Attorneys' Fees): Punitive damages for employment discrimination cases under the NYSHRL will no longer be capped, nor will the allowance for reasonable attorneys' fees.
  • (Eff. Aug. 12, 2020 – Statute of Limitations Expanded): Individuals will have three years to report sexual harassment claims to the NY State Division of Human Rights, as opposed to one year.

Takeaways

It is also worth noting that, as of February 8, 2020 these laws will apply to all employers within the state, regardless of size. The current laws only apply to employers with four or more employees, which means that smaller employers will have legal responsibilities and prohibitions regarding discrimination and sexual harassment that they did not have prior to February 8, 2020.

Companies with New York employees and operations should immediately review their appearance and hair polices to make sure they comply with the new law. Those policies should be neutral in language and not single out nor prohibit certain hair textures or hairstyles of any racial group.

As for the other law, employers have a lot more work to do. First, they should review their sexual harassment training policies and notices along with their new-hire orientation practices and ensure that proper notice of their policies is given at commencement of employment. (They should also ensure that they are providing employees annual sexual harassment prevention training.)

They should then review their "standard" contracts and agreements, especially any contracts that contain release language, non-disclosure language, and mandatory pre-suit arbitration provisions and ensure they will be compliant under the new law. This is particularly true for contracts with discrimination/harassment releases to ensure they comply with the new 21/7 consideration/revocation period.

For those trying to keep up, New York has now passed four major employment laws in just the past two months. The other two are also plaintiff friend and concern equal pay (eff. October 8, 2019) and salary history (eff. Jan. 6, 2020).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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