New York State Expands Harassment Laws

August 29, 2019 Advisory

New York State laws providing protection of employees from sexual harassment were greatly expanded by legislation enacted in early August 2019. The following is a short summary of some of the provisions of that law:

  • The harassment laws previously enacted are now applicable to all employers, regardless of the number of employees.
  • As of Aug. 12, 2020, the statute of limitations for filing a sexual harassment claim with the State’s Division of Human Rights will be lengthened to three years (while other types of discrimination or harassment remain one year).
  • The law changes the standard for sexual harassment claims. Previously, an employee had to establish that the hostile workplace conduct was “severe or pervasive.” Under the new law, an employee need only show that they are subjected to “inferior terms, conditions or privileges of employment” due to the fact they were a member of a protected class. It should be noted that this aligns New York State with New York City law, which requires that a plaintiff prove that they were treated “less well,” with the degree of severity or pervasiveness only being relevant to the amount of damages. The new law, however, also includes an affirmative defense for the employer where “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.” Defining “petty” and “trivial” will undoubtedly be the subject of much litigation in the future.
  • Previously, an employer could avoid liability by showing it took measures to prevent harassment, but that the alleged victim did not take advantage of the employer’s procedures for reporting such conduct. The new law does not permit the employer to escape liability simply because the employee did not follow the employer’s procedures.
  • The new law extends anti-harassment protections to non-employees who provide service in the workplace, such as employees of a contractor doing work in a building. The rules now protect these non-employee workers against the actions of the building’s owner.
  • Under prior law, it was discretionary for a court to award legal fees. The new law provides that awarding legal fees to a prevailing employee in an employment discrimination, harassment or retaliation claim is mandatory, and penalties may be assessed against the employer. Note: If the employer prevails, it may be entitled to legal fees only if it proves that the employee’s claim is frivolous.

The restrictions against harassment in the workplace (sexual or otherwise) continue to be tightened. All cooperatives, condominiums and other building owners are required to have anti-harassment policies in place that conform to the law. Armstrong Teasdale’s condo and co-op attorneys have significant experience preparing anti-harassment policies.

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