New York Makes Filing Harassment Claims Easier

Gov. Andrew Cuomo has signed legislation that makes it easier for employees to file harassment claims.

S.6577/A.8421 were passed June 19 in the midst of two days of lengthy deliberations as the state legislative session came to a close. Assemblyman Joe Giglio, R-Gowanda, voted in favor of the bill in the Codes Committee on June 17 and on the Assembly floor. Assemblyman Andrew Goodell, R-Jamestown, voted against the legislation on the floor of the Assembly on June 19. It passed the Assembly 128-20 and the state Senate 62-0.

“I appreciate the efforts of my colleague to expand discrimination protections in the workplace,” Goodell said. “Unfortunately I think there are some issues with this bill I wanted to highlight for all of us.”

In her legislative justification, Assembylwoman Aravella Simotas, D-Astoria and the legislation’s sponsor, mentioned the “Me Too” and “Times Up” movements as reasons for the state to pass new policies.

She said the state Legislature approved a number of measures in 2018, including measures to combat sexual harassment in the workplace, including mandating that all employers in New York state have a sexual harassment policy, employee training, and a clear complaint and investigation process.

Simotas wrote that her legislation This legislation built on the 2018 legislative package.

“Today is a good day,” said Simotas on the floor of the Assembly. “It is a day when New York state has moved closer to recognizing that harassment in the workplace is a persistent and pervasive problem that affects every industry. today is a day when New York state will establish some meaningful solutions to identify and prevent workplace harassment. Today is a day where we send a clear message to the New York state workforce that we are committed to protecting workers and not shielding institutions or enabling harassers. I am very proud that after decades we are establishing a new definition of discriminatory to cover all protected classes.”

The legislation provides that the state Human Rights Law covers all employers in the state, including the state and all political subdivisions, for all forms of discrimination and harassment.

It extends protection to discriminatory and retaliatory harassment based on all protected categories — listed in the bill as age, race, sex, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.

The law eliminates the “severe or pervasive” standard from discriminatory and retaliatory harassment cases. It also eliminates part of the Faragher/Ellerth defense, which provided a defense for employers if no tangible adverse employment action was taken against the plaintiff, if the employer exercised reasonable care to prevent and promptly correct the harassing behavior, or if the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

Punitive damages are extended to employment discrimination actions with no limit on amount for cases brought before the state Division of Human Rights. It also provides for punitive damages and attorneys’ fees to prevailing plaintiffs in all employment discrimination cases — existing law limited punitive damages and attorneys’ fees for sexual discrimination.

Mandatory arbitration clauses related to discrimination will be prohibited, as are non-disparagement provisions in employment contracts that prevent employees from disclosing factual information related to discrimination claims when discussing cases with law enforcement agencies or private counsel. It also prohibits non-disclosure agreements that prohibit someone from initiating, testifying, assisting, complying, or participating in an investigation conducted by any government agency, or disclosing facts necessary to receiving public benefits.

The law also requires employers to provide their employees with a notice containing their sexual harassment prevention policy and information presented at their sexual harassment prevention training program both in English and the employee’s identified primary language and extends the time frame for victims of sexual harassment in the workplace to file administrative complaints with the Division of Human Rights from one year to three years.

Goodell listed five main issues with the bill. Prior anti-discrimination provisions didn’t apply to small businesses, something the Jamestown Republican pushed to be included in the finished legislation. He also objected to the prohibition of non-disclosure agreements and mutually agreed to binding arbitration. Eliminating non-disclosure agreements, Goodell argued, could mean fewer settlements in discrimination cases while binding arbitration can be less costly and time-consuming for both the employee and the employer. Goodell also criticized awarding employees’ fees to an employee if they win a discrimination case but not awarding attorneys’ fees to an employer if the employer prevails in the case. Lastly, Goodell criticized having to provide notice of an employee’s rights in both English and an employee’s identified primary language even if the employee is proficient in English.

“I certainly support the intent to minimize discrimination,” Goodell said. “I think that’s a great idea. I would hope though that we can have a bill that doesn’t really hurt small businesses, the mom and pop stores, those who only have a few employees, and recognize that some of these provisions, while they make sense in a larger employer context, don’t make sense when you’re dealing with a small business.”