As we reported in our summer newsletter, in late June the New York Legislature passed a bill that vastly changed the discrimination and harassment landscape for employers. On Aug. 14, Gov. Andrew Cuomo signed that bill into law.
As a reminder, this law expands the New York Human Rights Law (NYSHRL) in several ways: it amends the definition of "employer" to include all employers within the state; it extends the filing deadline for complaints of sexual harassment with the Division of Human Rights from one to three years; it dictates that the NYSHRL should be interpreted more broadly (i.e., more like the New York City Human Rights Law) than federal law; it removes the "severe and pervasive" requirement for all forms of harassment; it removes Faragher-Ellerth as an affirmative defense; it extends the restrictions on nondisclosure and arbitration agreements to all forms of discrimination; it expands the individuals protected by all forms of harassment/discrimination to include nonemployees; it provides attorneys' fees for all successful discrimination/harassment claims; and it requires employers to provide anti-sexual harassment policies in English and the primary language identified by each employee, and to provide such policy upon hire and at the mandatory yearly anti-harassment training.
As a result, employers likely now need to change their New York state-required antiharassment policies and training. Specifically, policies and training should be reviewed to ensure that any reference to the severe and pervasive standard be eliminated and a strong emphasis be placed on the employer's receptiveness to any and all complaints and how the employer will react swiftly to such complaints. Additionally, policies and training should be reviewed to ensure that they include the enhanced protections the law provides to other protected classes that previously only applied to sexual harassment.
Under the new law, employers can be held responsible even when an employee has not complained internally, so employers also should start making additional efforts to ensure their employees are happy and harassment is not occurring. It is also imperative for employers to play up their anti-retaliation provisions in this new construct if employees are concerned they will be retaliated against, they are sure to not report problems to the company, and under this new law, they don't have to. To accomplish both of these goals – instilling good morale and creating an open atmosphere where employees feel comfortable speaking to managers – employers might consider instituting town hall meetings or other, similar touch-base meetings between management and employees, utilizing an anonymous hotline, hiring an ombudsperson, undertaking an immediate investigation of any complaints made (including those that do not meet the old standard of severe and pervasive), and providing and encouraging team-building activities. Perhaps most important, employers should ensure that management is present and engaged in all training and team-building activities and that management (not just those in human resources and legal) take immediate action with regard to any inappropriate behavior, not just behavior that meets the old standard of severe or pervasive.
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