Because anti-discrimination laws vary state-to-state, your rights in the workplace depend on the state in which you live or work. New York was the first state to enact a law prohibiting employment discrimination, which has recently been amended to include stronger protections for workers. Last summer, Governor Andrew Cuomo signed into law amendments to the New York’s anti-discrimination, sexual harassment, and labor laws, which went into effect over the last few months.
Many of the changes bring the New York State Human Rights Law (“NYSHRL”) more closely in line with the New York City Human Rights Law (“NYCHRL”), which was already one of the most protective laws in the country.
Here are some of the new protections that workers in New York will have under the amendments:
- All employers are covered: Before the NYSHRL was amended, it only applied to employers that employ four or more employees. As of February 8, 2020, however, the NYSHRL applies to all employers within New York, regardless of how many workers they employ. Y. Exec. Law § 292(5).
- Protection of non–employees: As of October 11, 2019, non-employees such as independent contractors, subcontractors, vendors, and consultants are protected from all forms of unlawful discrimination under the NYSHRL. Y. Exec. Law § 296-d.
- Expanded pay equity: As of October 8, 2019, New York employers cannot pay employees differently based on their “age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.” N.Y. Lab. Law 194. Previously, this equal pay law only applied to pay differentials based on sex.
- Salary history ban: As of January 6, 2020, employers are prohibited from asking current employees or job applicants for their wage or salary history as a condition of employment. N.Y. Lab. Law 194-A. The purpose of the law is to narrow the wage gap.
- Lower standard for proving harassment: Prior to the amendment, plaintiffs bringing a harassment case under the NYSHRL had to prove that the harassment they experienced was so “severe or pervasive” that it altered the conditions of their employment, which is the standard under federal law. As of October 11, 2019, plaintiffs only need to show that they suffered “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more [ ] protected categories.” N.Y. Exec. Law § 296(1)(h). This new, lowered standard is similar to the NYCHRL, under which plaintiffs only need to show that they were treated “less well” than other employees because of their membership in one or more protected classes.
- Non-disclosure provisions: If a plaintiff settles a discrimination claim with their employer, the settlement agreement cannot include a non-disclosure provision under which the plaintiff is prevented from disclosing the facts and circumstances to their claim, unless such a condition of confidentiality is the plaintiff’s preference. The plaintiff also has 21 days to consider such a condition and seven days to revoke it. N.Y. Gen. Oblig. Law § 5-336.
- Elimination of defense: New York employers used to be able to assert the “Faragher-Ellerth” defense, under which an employer could avoid liability if it could show that the company took reasonable steps to prevent and correct harassment and the complaining employee unreasonably failed to take advantage of those preventive or corrective measures. Under the new law, New York employers can no longer assert this defense; “[t]he fact that [the plaintiff] did not make a complaint about the harassment to such employer … shall not be determinative of whether such employer … shall be liable.” Y. Exec. Law § 296(1)(h).
- Extended statute of limitations for filing sexual harassment claim with agency: Beginning on August 12, 2020, plaintiffs will have three years to file a sexual harassment claim with the New York State Division of Human Rights (the agency that enforces the NYSHRL). The statute of limitations for filing all other NYSHRL claims with the agency remains one year. Y. Exec. Law § 297(5).
- Punitive damages and attorney’s fees: Under the new legislation, plaintiffs who prevail in their case, either before a court or before the New York State Division of Human Rights, can now recover punitive damages and attorney’s fees. Y. Exec. Law § 297(9) and (10).
If you are an employee in New York and believe you have experienced discrimination in the workplace, you should consult with an employment lawyer.