“Severe or pervasive” is replaced with a broad new standard that defines harassment as any conduct that subjects an employee to “inferior terms, conditions or privileges of employment because of an individual’s membership in one or more of the [] protected categories.”
Employees are not required to internally report harassment before bringing a claim. The bill eliminates an employer’s ability to rely on certain defenses previously allowed under the U.S. Supreme Court’s decisions in the Faragher/Ellerth cases.
- The fact that an individual did not make a harassment complaint to their employer will not be determinative of whether an employer is liable under New York state law.
Mandatory arbitration of all claims of discrimination are prohibited, an expansion of existing law, which only prohibited mandatory arbitration for sexual harassment claims.
Parties are prohibited from including nondisclosure provisions in settlement agreements for any claims of discrimination unless the employee requests confidentiality.
Unlimited punitive damages are available for all employment discrimination claims, not just those based on sex discrimination.
Takeaway: Employers in New York must now take a new and very different approach to harassment issues at work. Many employers’ policies are written around the “severe or pervasive” standard and include harassment reporting procedures designed around the Faragher-Ellerth defense.
