Executive Summary. New York has become the most progressive State in the nation when it comes to protecting workers against harassment, discrimination and retaliation on the job. In the last two years, New York has made it much easier for any worker, whether an employee, independent contractor, or other non-employee, to claim harassment based on any protected category against any private employer, even an employer with only one employee or independent contractor. Also, legal fees, by law, must be awarded to a prevailing plaintiff and, beginning August 12, 2020, the time limit for bringing a sex or gender based harassment claim is extended to three years.
The 10 Most Significant Changes in New York Harassment Law
1. The right to claim harassment has expanded to independent contractors and other non-employees.
In 2018, New York expanded its protection against sexual harassment to cover independent contractors, subcontractors, consultants, and each of their employees, any other person providing services pursuant to a contract in the workspace, such as equipment repair and cleaning, and “non-employee” designations, such as “gig” worker, temp, or intern, paid or unpaid. In 2019, New York extended this coverage against harassment to any protected category, including age, race, creed, color, national origin, sex, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, lawful source of income, arrest and conviction, sexual and reproductive health, and domestic violence victim status.
2. The right to claim harassment has expanded beyond a worker’s direct employer.
In 2018, New York expanded the right to claim harassment against any business that operates in the workplace or to which a worker is assigned to work as well as the direct employer.
3. The time limit to file a sex or gender-based harassment claim is being extended to three years.
At present a worker has one year to file a claim of harassment with the NYS Division of Human Rights. As of August 12, 2020, a worker will have three years to file a sex or gender-based harassment claim, the same amount of time the worker has to file any type of state law harassment claim in a NYS court.
4. Very small employers are becoming subject to harassment claims.
Currently a worker can file a harassment claim with the NYS Division of Human Rights against any private employer of four or more employees and/or independent contractors, and a sexual harassment claim against any private employer with one employee or independent contractor. As of February 8, 2020, a worker can file a harassment claim on any protected basis against any private employer, even an employer with only one employee or independent contractor.
5. The standard for proving a harassment claim has been significantly lowered.
As of October 11, 2019, a worker can make out a harassment claim if another’s conduct subjected the worker to “inferior terms, conditions or privileges of employment,” which has been interpreted as being treated “less well” than another worker outside the worker’s protected category. A worker no longer has to prove the harassment was “severe or pervasive”; or that a “comparator,” someone outside the worker’s protected category, was treated better; or that the worker filed a complaint internally. An employer’s defense is limited to showing that the harassment amounted to no more than “petty slights” or “trivial inconveniences” to a reasonable victim.
6. Legal fees and punitive damages are recoverable.
As of October 11, 2019, a worker prevailing on a harassment claim shall, by law, recover reasonable attorney fees from an employer and may recover punitive damages as well as economic and compensatory (emotional injury) damages. NYS may also impose fines on an employer.
7. Harassment non-disclosure provisions in settlement agreements are more difficult to obtain.
As of October 11, 2019, a worker cannot be bound by any agreement signed after that date that prohibits the worker from disclosing harassment facts or settlement of a claim of harassment on any protected category basis unless that is the worker’s preference. If so, a three step process must be followed: (i) the nondisclosure term must be written in an agreement in plain English and, if applicable, the worker’s primary language as well; (ii) the worker must be given at least 21 days to consider the non-disclosure term and 7 days after signing to revoke consent; and (iii) after the expiration of the revocation period, the worker and the employer must enter into a second agreement that includes the nondisclosure term and any other terms resolving the harassment claim.
8. Harassment non-disclosure provisions in new hire agreements are becoming more difficult to obtain.
As of January 1, 2020, a worker or potential worker cannot be bound to any agreement that prevents the worker from disclosing factual information about a potential future claim of harassment, unless it notifies the worker that the worker is free to speak with law enforcement, a discrimination agency, or an attorney retained by the worker.
9. Mandatory arbitration of harassment claims is under scrutiny.
As of October 11, 2019, a worker can contest a mandatory agreement to arbitrate a harassment claim, and arbitration provisions are subject to strict scrutiny.
10. Harassment that occurs outside of New York State may be prohibited by New York State’s Human Rights law.
Depending on the facts and the impact of the harassment within New York State, harassment of a resident or non-resident of New York State that occurs outside of New York State is prohibited.
Conclusion. As of October 11, 2019, New York State expanded to independent contractors, gig workers and other non-employees the right to file workplace harassment claims and significantly lowered the proof standard for these claims. As of August 12, 2020, New York will extend from one to three years the right to file an administrative complaint of sex or gender based harassment claim with the NYS Division of Human Rights. With these changes and the others mentioned above, New York has become the most progressive State in the nation in protecting workers against harassment, discrimination and retaliation on the job.
FordHarrison LLP provides advice and counsel on all issues relating to labor, employment and benefits, including, but not limited to, sexual and other forms of harassment. If you have any questions regarding this Legal Alert or would like our advice about particular facts and circumstances at your workplace, please contact the author, Stephen Zweig at szweig@fordharrison.com or 212-453-5906 in FordHarrison's New York City office, or the FordHarrison attorney with whom you usually work.