The state of New York has enacted several new rules that are aimed at combating discrimination and sexual harassment.
Background:
Currently, the state of New York's Human Rights Law (NYHRL) prohibits employers with four or more employees from discriminating against applicants and employees on the basis of age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status. Employers are also prohibited from discrimination because an individual has opposed any practices forbidden under the law or because they've filed a complaint, testified, or assisted in any proceeding under the law. The NYHRL also prohibits all employers from subjecting applicants and employees to sexual harassment.
Sexual Harassment Policies:
In 2018, New York enacted legislation that requires employers to adopt a model sexual harassment prevention policy and provide it to employees in writing. The law also requires employee training and prohibits sexual harassment of non-employees, such as contractors, consultants, and vendors.
Further, the law generally prohibits employers from including in any settlement agreement a clause that would prevent the disclosure of the facts and circumstances of a sexual harassment claim. In addition, the law prohibits written contracts from containing mandatory arbitration clauses for resolving sexual harassment claims, except where inconsistent with federal law.
Assembly Bill 8421:
Assembly Bill 8421 will make the following changes:
Effective immediately:
Employers must provide a new written notice to employees, in English and in the language identified by each employee as their primary language, at the time of hire and at every annual harassment prevention training.
The notice must contain the employer's sexual harassment prevention policy and the information from the sexual harassment prevention training program. The state will develop templates that employers can use. If a template isn't available in an employee's primary language, the employer must provide an English version of the notice.
Effective October 11, 2019:
- Harassment based on any characteristic protected under the NYHRL is prohibited.
- Employers are prohibited from subjecting non-employees to any form of unlawful discrimination.
- The standard for whether harassment is unlawful in the state is no longer whether it was "severe or pervasive" but whether it subjects an individual to inferior terms, conditions, or privileges of employment because of their membership in one or more protected categories. The fact that the individual did not make a complaint about the harassment to the employer will not be used to determine whether the employer may be held be liable.
- The rules covering mandatory arbitration and nondisclosure agreements apply to both harassment and discrimination claims. In cases in which the complainant prefers a confidentiality agreement, it must be provided to all parties in writing in plain English and, if applicable, the complainant's primary language.
Effective February 8, 2020:
- The NYHRL's prohibitions on discrimination will expand to cover all private employers in the state.
Effective August 12, 2020:
- The statute of limitations for filing sexual harassment complaints will be three years.
Compliance Recommendations:
New York employers should review their policies, training, and employment agreements to ensure compliance with the new requirements and prohibitions.
Please contact your dedicated service professional with any questions.