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New York State Moves to Expand Workplace Protections

A new bill coming out of the New York Legislature will make it easier for employees to bring and prove claims of discrimination. An overview of some of the changes is laid out below.

Lower Standard of Proof: New York’s anti-discrimination statute formerly mirrored Title VII’s requirement that harassment be “severe or pervasive” to violate the law. That standard will be lowered; an employee must now show that he/she was subjected to “inferior terms, conditions or privileges of employment” because of that individual’s membership in a protected class. Employers may show through an affirmative defense that the conduct does not rise above “petty slights or trivial inconveniences.” However, employers will no longer be able to rely on an employee’s failure to take advantage of the employer’s complaint process to defend itself in state court.

Longer Statute of Limitations: Employees will now have three years to report workplace harassment and discrimination to the state enforcement agency, up from the previous one-year statute of limitation.

More Damages: Punitive damages will be uncapped under the new rules and reasonable attorney’s fees will be awarded in discrimination cases against private employers.

All Employers Included: Employers of all sizes are now subject to the New York State Human Rights Law. The law was previously limited to employers with more than four employees, except in cases of sexual harassment. Moreover, some non-employees, such as contractors, vendors, consultants, and other individuals providing services pursuant to a contract will also be protected from discrimination.

Significant Limiting of Non-Disclosure Clauses: New York employers were already precluded from including confidentiality clauses in the resolution of sexual harassment claims unless the complaining party preferred it. Now that prohibition is expanded for all claims of discrimination by a member of a protected class. In those instances where the complainant prefers it, the nondisclosure terms must be written “in plain English” and open for 21 days, with seven days after signing to revoke. For those confidentiality clauses that are agreed to, they may not prevent the employee from speaking with law enforcement, the EEOC, the state anti-discrimination agency, local commission on human rights, or the employee’s attorney.

Mandatory Arbitration Prohibited: Arbitration of all discrimination claims will now be prohibited as a condition of employment unless inconsistent with federal law. New York employers are urged to review the bill and its implications carefully.