New York Enacts Broad Changes to New York Human Rights Law

Q: I am a New York employer. What should I know about the recent amendments to the New York Human Rights Law?

A: In June 2019, New York State approved a bill that makes numerous changes to the New York Human Rights Law (“NYHRL”), governing discrimination and harassment.  Governor Cuomo has not yet signed the bill, but is expected to shortly.

As explained in more detail below, the legislation significantly increases the NYHRL’s coverage by expanding the definitions of “harassment” and “employer.” The legislation also prohibits non-disclosure clauses in any settlement agreement involving discrimination allegations. Finally, the legislation expands employers’ sexual harassment training obligations, and extends the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights to three years.

Definition of Harassment

The NYHRL currently prohibits harassment based on gender, race, religion, sexual orientation, gender identity or expression, or national origin. The amendments expand these protected categories to include age, creed, color, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because an individual has opposed any practices prohibited by the NYHRL or participated in any proceeding under the NYHRL.

The amendments also significantly expand the definition of harassment. Currently, to prove harassment under the NYHRL, a plaintiff must demonstrate that the harassment was “severe and pervasive.”  Under the amendments, a plaintiff need only show that the harassment “subjects an individual to inferior terms, conditions, or privileges of employment.”  Employers will no longer be permitted to rely on the affirmative defense that the employer had an effective complaint procedure, the individual did not take advantage of it, and there was no adverse employment action.  Rather, the employer’s only affirmative defense is if 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.”  Lowering the standard from “severe or pervasive” harassment to harassment that rises above “petty slights or trial inconveniences” greatly expands the universe of potential harassment claims and aligns the New York state law with the standards set forth in the New York City Human Rights Law.

The new definitions will be effective 60 days after the bill become law.

Definition of Employer

The amendments remove the NYHRL’s current carve-out for employers with fewer than four employees. Beginning 180 days after the bill become law, the NYHRL will apply to all employers regardless of size

Inclusion of Non-Disclosure Clauses in Settlement Agreements

New York employers may recall that, in 2018, the state passed a new law prohibiting non-disclosure provisions in any settlement agreement of a sexual harassment claim unless the complainant prefers to include the provision, has 21 days to consider it, and has a seven-day revocation period. The amendments expand these prohibitions to settlement agreements of any discrimination claim, rather than just claims of sexual harassment.  In addition, non-disclosure provisions are void to the extent that they prohibit or restrict the complainant from participating in an investigation by a government agency or disclosing any facts necessary to receive unemployment insurance or other public benefits.

These changes will be effective 60 days after the bill becomes law.

Sexual Harassment Training

The amendments expand upon last year’s new law requiring employers to give annual sexual harassment training. Employers will be required to train employees and distribute policies in the employees’ primary language.  The New York Commissioner of Labor will create versions of the template sexual harassment training and policy in other languages.  If there is not a template available from the Commissioner in an employee’s primary language, the employer can provide the policy and training in English.

Statute of Limitations

Effective one year after the bill becomes law, the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights will be increased to three years, as compared to the current one year statute of limitations.

Steps for Compliance

To prepare for the amendments, employers should review and update all relevant policies and training materials. While anti-harassment should always be an area of focus for employers, employers should be especially aware of any potentially harassing situation given the forthcoming lower standard for harassment under New York State law.

Jessica Rothenberg

Second Circuit Court of Appeals Recognizes Hostile Work Environment Claim Under the ADA

Q.  An employee at one of my company’s facilities in New York recently complained to his supervisor that his coworkers made fun of his disability. Can an employee with a disability file a “hostile work environment” claim under the Americans With Disabilities Act?

A.  On March 6, 2019, the Second Circuit Court of Appeals ruled for the first time that hostile work environment claims are available to plaintiffs under the Americans with Disabilities Act (ADA). With its decision in Fox v. Costco Wholesale Corporation, the Second Circuit joins the Fourth, Fifth, Eighth and Tenth Circuits, which likewise have found that hostile work environment claims are cognizable under the ADA.

In Fox v. Costco, the plaintiff suffered from Tourette’s syndrome and obsessive-compulsive disorder, conditions which manifested in verbal tics and other behavioral issues.  He alleged that, following a change in management, he was subjected to a hostile work environment by a new manager, who reprimanded the plaintiff for his work on certain tasks that non-disabled individuals performed in the same way but were not reprimanded for.  Later, the employer disciplined the plaintiff following complaints from customers regarding his behavior, which included an incident where he told a customer that she was “the love of his life.”  After investigating these incidents, the employer suspended the plaintiff for several days and transferred him to another job with the same pay and benefits.

Even after the transfer, however, the plaintiff alleged that his new supervisor made harassing comments to him. In addition, his coworkers began mimicking his behavioral tics, allegedly taunting him with comments such as “hut-hut-hike,” a mocking reference to a behavioral tic in which plaintiff sometimes crouched like a football player to touch the floor before moving forward.  The plaintiff alleged that the employer’s managers witnessed these comments over a period of “months and months,” but failed to act.  After plaintiff had a panic attack at work one day, he went out on indefinite medical leave and did not return to work.

The district court granted summary judgment to the employer on the plaintiff’s claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation under the ADA and New York State Human Rights Law. Regarding the hostile work environment claim, the district court found that the plaintiff failed to prove that the alleged conduct was sufficiently “severe and pervasive” because he offered no details regarding the persistence of the “hut-hut-hike” comments, such as how many times the comments were made per shift, week and/or month.  The district court also ruled that the conduct and comments at issue were not objectively hostile and abusive.

On appeal, the Second Circuit affirmed the district court’s grant of summary judgment with respect to the plaintiff’s claims for disparate treatment, retaliation, and failure to accommodate. However, the Second Circuit also found that the plaintiff offered enough evidence to present the claim to a jury to decide “whether the frequency and severity of the mockery rose to the level of an objectively hostile work environment.”  Specifically, the plaintiff’s testimony that his coworkers mocked his disability for months—in the presence of managers who did nothing to prevent the comments—was sufficient to defeat summary judgment.

The court based its decision on the plain language of the ADA, which prohibits employers from discriminating “against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” As the court explained, this language was borrowed from Title VII, and since the ADA “echoes and expressly refers to Title VII” and Title VII allows for a hostile work environment claim, the same standard should be applied to a hostile work environment claim under the ADA.

Having found that the ADA can serve as a basis for a hostile work environment claim, the court proceeded to analyze whether the plaintiff presented evidence that the alleged harassment was sufficiently severe or pervasive to meet the standard. The appeals court rejected the district court’s finding that the plaintiff was required to present specific evidence “regarding the number of times the comments were made per shift, week and/or month” in order to show that the harassment was pervasive.  In this respect, the Second Circuit explained, “[t]he district court demanded too much of [plaintiff].”  Instead, the plaintiff was required to demonstrate only that the conduct he complained about was “objectively abusive.”

In light of this decision, now may be a good time to emphasize to managers and supervisors that they must take action if they become aware of employees making inappropriate remarks in the workplace based on an individual’s protected status, including disability.

Rogers Stevens

#MeToo: Is Your Company Covered?

Q.  Are there any steps we should take to protect our company from liability in the #MeToo era?

A.  A year ago, sexual assault allegations against movie mogul Harvey Weinstein rocked the entertainment industry and quickly led to the rise of the #MeToo movement, sparking an upsurge of reports and claims of sexual harassment in workplaces across America. In many cases, the alleged misconduct is not new. But the intensity, tone, and tenor of the claims — and the sheer volume of allegations — has been dramatically different and has had significant effects on businesses caught in the cross-hairs.

Public sentiment has also shifted: A CNN poll conducted in December 2017 found that nearly 70 percent of Americans described sexual harassment as a “very serious problem.” That’s almost double the 36% of Americans who expressed similar views in a CNN/Time poll conducted in 1998. As high-profile, credible women have come forward in virtually every industry, more women have been emboldened to share their stories.

Alleged perpetrators are not the only ones being called to account; so are other corporate actors who allegedly enabled, covered up, or failed to prevent the wrongdoing. Sexual harassment claims against high-ranking corporate actors can expose companies to enormous costs, including reputational harm, consumer boycotts, drops in market capitalization, loss of corporate opportunities, and legal expenses for internal investigations, government proceedings, employment lawsuits, securities class actions, and shareholder derivative suits.

It’s vital that businesses and individual directors and officers understand their potential exposure to loss arising out of sexual misconduct claims and the availability and limitations of their insurance coverage.

Read Full Article Here.

Pamela S. Palmer and Susan K. Lessack*

* This publication was prepared by Marsh in conjunction with Pepper Hamilton LLP. Copyright © 2018 Marsh LLC. All rights reserved. It is reprinted here with permission.

Delaware Passes Sexual Harassment Law Which Includes Training Mandates for Employees

Q.  Does Delaware have any laws requiring employers to train employees on their harassment policy?

A.  Yes. On August 29, 2018, Delaware enacted a sexual harassment law aimed to broaden protections for workers against sexual harassment. Among other things, the law requires employers to provide sexual harassment prevention training to all employees, with supervisors receiving additional training.  The law also instructs employers as to the content of the training.

Specifically, employers in Delaware with 50 or more employees must provide interactive training and education to employees regarding sexual harassment training. Such training shall be provided to new employees within one year of hire, and thereafter every two years, and to existing employees within one year of the effective date of the Act and thereafter every two years.  The training must include all of the following:

  1. The illegality of sexual harassment;
  2. The definition of sexual harassment using examples;
  3. The legal remedies and complaint process available to the employee.
  4. Directions on how to contact the Department.
  5. The legal prohibition against retaliation.

In addition, employers must provide supervisors with interactive training that includes: (i) specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment; and (ii) the legal prohibition against retaliation. New supervisors must receive training within one year of employment and every two years thereafter, and existing supervisors must receive training within one year of the effective date of the Act (January 1, 2020), and every two years thereafter.  If an employer already provided training that meets the requirements of the law, the employer is exempt from training until January 1, 2020.

In addition to the training requirement, the new Delaware law provides that an employer is responsible for the sexual harassment of an employee when (1) the supervisor’s sexual harassment results in a negative employment action of an employee; (2) the employer knew or should have known of the non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or (3) a negative employment action is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or lawsuit about the sexual harassment of an employee.

A “negative employment action” is defined broadly as “an action taken by a supervisor that negatively impacts the employment status of an employee.” It is unknown whether courts will interpret this to mean an “adverse action” that affects the terms or conditions of employment, or some broader type of “negative action,” such as a “hostile work environment.”  An action broader than what has been traditionally defined as a “adverse action” could significantly expand the situations in which employers can be held liable under the Act.

A Delaware employer can avoid liability based on a non-supervisory employee’s action if the employer: (1) exercised reasonable care to prevent and correct any harassment promptly; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

Notice Requirements for Employers

To comply with the notice requirements of the law, employers must distribute an information sheet, created by the Delaware Department of Labor, which includes information regarding employees’ right to be free from sexual harassment in the workplace.  New employees must receive the notice upon hire (beginning January 1, 2019).  Current employees must receive the notice by July 1, 2019.  The notice can be distributed electronically or physically.

Kali T. Wellington-James

New York Employers Must Comply with New Sexual Harassment Requirements, Beginning October 2018

Q: I am a New York employer.  How do the upcoming New York State and New York City sexual harassment requirements affect me?  When is the deadline to comply?

A: New York State and New York City have new sexual harassment policy and training requirements for employers.  The New York State requirements go into effect on October 9, 2018 (policy must be adopted by October 9, 2018 and training must be completed by January 1, 2019).  The New York City requirements (training only) go into effect April 1, 2019.  The New York State requirements apply to all employers, and the New York City requirements apply to employers with 15 or more employees in New York City.

The City and State training requirements are similar, so employers that do not yet meet the City threshold of 15 employees should consider complying with the City requirements regardless. That way, should the employer reach the 15 employee threshold, it will already be in compliance.

New York State requires that all employers implement a written anti-harassment policy by October 9, 2018. Employees should sign acknowledgments, and employers should keep the acknowledgments on file for at least three years.  The policy must have a number of elements:

  • State that sexual harassment is a form of employee misconduct and sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow sexual harassment to continue;
  • Provide examples of prohibited conduct;
  • Include information about the federal and state statutory sexual harassment provisions and remedies applicable to victims of sexual harassment, as well as a statement that there may be applicable local laws;
  • Include a standard complaint form;
  • Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • Inform employees of their rights of redress and administrative and judicial forums for adjudicating sexual harassment complaints; and
  • State that retaliation against individuals who complain about sexual harassment or who testify or assist in any proceeding under the law is unlawful.In addition to the above policy requirements, the laws also require annual sexual harassment training. New York State requires that all employees must be trained by January 1, 2019. New York City requires that all employees be trained by April 1, 2020 (one year from the effective date of the law). Employers with employees in New York City must comply with both laws, and thus must complete training by January 1, 2019. The training must be interactive and include:
  • An explanation of what constitutes sexual harassment;
  • Examples of conduct that constitute unlawful sexual harassment;
  • Information about federal and state statutory provisions concerning sexual harassment and available remedies;
  • Information about rights of redress and all available forums for adjudicating complaints;
  • Information about supervisor/managerial conduct and additional responsibilities;
  • Information about internal and external complaint processes; and
  • Information about bystander intervention (New York City specific).Both the City and State require annual training. New employees must complete sexual harassment training within 30 days of beginning work. The training must be interactive, which means the program should include questions for employees and allow employees to ask questions. While a live trainer is the most effective form of training, training can be web-based, so long as it is sufficiently interactive.To prepare for the new requirements, employers should update (or create) compliant sexual harassment policies, and get written acknowledgments of the policy from every employee, and also prepare to meet the requirements for sexual harassment training. New York State has released a model policy and training materials. However, they are still open to public comment until September 12, and may be subject to change.  Employers who would like assistance with policy or training compliance or who have additional questions should contact counsel

–Jessica Rothenberg