June 28, 2019
Lowering the bar substantially for workplace harassment claims, New York has passed legislation that eliminates the “severe or pervasive” standard from discriminatory and retaliatory harassment cases, prohibits a key employer defense, and extends the statute of limitations to three years for sexual harassment complaints under state law.
“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.
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.