Legal Analysts

Monday, August 12, 2019

Alert: Cuomo Makes it Easier for Workplace Sexual Harassment Claims

Attention Employers and HR!!!!

Cuomo signs sexual harassment law- as we first reported on June 19, 2019, A08421 passed both houses and now Cuomo has made it the law of the State of New York.

The legislation does the following:
  • Changes the severe or pervasive standard of harassment to a very low standard of more than petty slights or trivial inconveniences;
  • Eliminates part of the Faragher/Ellerth affirmative defense to a lawsuit by making the fact that the employee did not make a complaint about the harassment to the employer not determinative as to liability;
  • Extends protection for non-employees in the workplace to all protected classes;
  • Allows courts to award attorney's fees on all claims of employment discrimination, and allow for punitive damages in employment discrimination cases against private employers;
  • Provide that the Human Rights Law is to be construed liberally for remedial purposes, regardless of how federal laws have been construed;
  • Prohibit mandatory arbitration clauses for discrimination claims;
  • Prohibit non-disclosure agreements in any settlement for a claim of discrimination, unless it's the complainant's preference;
  • Provide that any term or condition in a non-disclosure agreement is void if it prohibits the complainant from initiating or participating in an agency investigation or disclosing facts necessary to receive public benefits;
  • Require that employees be notified that non-disclosure agreements in employment contracts cannot prevent them from talking to the police, the Equal Employment Opportunity Commission (EEOC), the State Division of Human Rights or a similar local entity, or a lawyer;
  • Extend the authority of the Attorney General to prosecute certain civil and criminal cases of discrimination against all protected classes;
  • Require the Department of Labor and the Division of Human Rights to evaluate the impact of the model sexual harassment prevention policy every four years and update the policy as needed;
  • Require any term or condition in a non-disclosure agreement be provided in writing to all parties, in plain English and the primary language of the complainant;
  • Require the commissioner of the Labor Department to prepare templates of the model policy in languages other than English;
  • Require every employer to provide employees with their sexual harassment policy in English or their primary language when they are hired and during training; and
  • Extend the statute of limitations to file a sexual harassment complaint with the Division of Human Rights from one year to three years.

Visit to keep your company safe from discrimination claims while maintaining a safe workplace for all.