The New York Legislature on June 19, 2019 unanimously passed expansive new protections for protected classes and special protections for employees who have been sexually harassed through a new bill — S.6577.¹ According to its sponsor, Senator Alessandra Biaggi, the bill will ensure “that employers across all sectors are held accountable for addressing all forms of sexual harassment and discrimination in the workplace.” The new bill represents the latest comprehensive reform to strengthen New York’s sexual harassment laws and includes a number of different changes to New York’s laws, many of which were included in prior versions of the legislation introduced earlier this year. The bill is supported by Governor Andrew Cuomo, who is expected to sign it in the near future.

What the New Bill Means for Employers

The “severe or pervasive” standard for sexual harassment will no longer be required. The “severe or pervasive” standard had prevailed for decades based on established U.S. Supreme Court precedent interpreting Title VII of the Civil Rights Act of 1964. That standard recognized that where workplace harassment was so “severe or pervasive” as to “alter the conditions of employment and create an abusive working environment,” such conduct violates Title VII. The new bill eliminates the “severe or pervasive” standard and requires only that the individual be subjected to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more protected category.” It is an affirmative defense that the harassing conduct does not rise above the level of what a reasonable victim of discrimination would consider petty slights or trivial inconveniences.

There will be a prohibition of mandatory arbitration for all discrimination cases. The bill prohibits mandatory arbitration of all discrimination claims, not merely of sexual harassment claims.

Nondisclosure Agreements will be restricted. The new bill prohibits employers from including nondisclosure provisions in settlement agreements for all claims of discrimination rather than only sexual harassment claims. However, there is an exception if the plaintiff’s preference is the condition of confidentiality. The employee will have twenty-one days to consider the condition. Moreover, following the execution of the agreement, the employee has a period of at least seven days to revoke the agreement.

Statute of limitations for claims resulting from unlawful or discriminatory practices constituting sexual harassment will be extended to three years. Under the New York State Human Rights Law, the statute of limitations for victims of sexual harassment to file administrative complaints with the Division of Human Rights will be extended to three years from the previous one year statute of limitations applicable to such claims.

The new bill hinders an employer’s reliance on the Faragher-Ellerth defense to avoid liability when an employee has not previously complained. The Faragher-Ellerth defense was the result of two cases decided by the U.S. Supreme Court in 1998. Essentially, the Faragher-Ellerth defense is available for claims of harassment under Title VII where the employer could prove that it “exercised reasonable care to prevent and promptly correct any sexually harassing behavior” and that the plaintiff “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm otherwise.”² Previously, the Faragher-Ellerth defense required that an employee make a formal complaint in order to hold the company liable. Under the new bill, however, if an employee did not make a complaint to the employer about the alleged harassment, it will not be determinative of the employer’s liability. This change recognizes the fear an employee may have regarding retaliation and that, as a result, an employee may not bring a complaint forward.

Employers will be required to provide employees with notice in English and in the employee’s primary language of the employer’s sexual harassment prevention policy.

Protections are expanded to cover domestic workers and independent contractors.

The Commissioner of Labor is directed to conduct a study on strengthening sexual harassment laws.

Punitive damages will be allowed in all employment discrimination cases and reasonable attorney’s fees must be awarded to the prevailing party.

This new bill effectively expands opportunities for employees to bring claims, thus potentially expanding employer liability. Employers are more than ever incentivized to prevent harassment from occurring in the first instance. As such, employers should revisit their policies, agreements, and potentially revamp their training to ensure they are in compliance. This legislative development highlights the importance of embracing a proactive and vigilant approach to dealing with workplace problems before they arise.