Last month, the New York State Legislature passed a bill to significantly strengthen the laws against workplace harassment. The bill overrules decades of court precedent on such claims, and expands protections that were previously limited to sexual harassment victims to all forms of workplace harassment. The proposed changes would apply to all employers statewide, while the current law only applied to those with more than four employees.
The bill's biggest changes are to the legal standard for workplace harassment. The proposed bill would prohibit harassment based on a protected characteristic "regardless of whether such harassment would be considered severe or pervasive." It will be far easier for employees to succeed on workplace harassment claims, and the changes applies to all types of harassment (not just sexual harassment). The bill also allows employees to seek attorney’s fees and punitive damages from employers.
The law also weakens the affirmative defenses available to employers. While an employer can still assert that they took reasonable steps to prevent/correct the harassment and/or that the employee failed to take advantage of the employer's internal procedures, the bill expressly provides that this is not dispositive. Moreover, the affirmative defense on the severity of the harassment now requires that "the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences."
Finally, the law expands certain protections for sexual harassment victims passed as part of the 2018 budget agreement to all types of harassment. In particular, the bill expands the (1) limits on non-disclosure clauses in settlement agreements; (2) prohibition on mandatory arbitration clauses for harassment/discrimination claims; (3) prohibition on harassment to employer permitting harassment of non-employees in workplace.
The bill now goes to Governor Cuomo, who is expected to sign the bill into law. The full text of the bill can be found here.
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