Clock Ticking for New York Employers to Review Workplace Discrimination and Harassment Guidelines

August 7, 2019 in Employment Law

New York employers should take heed of New York Senate Bill S6577, which recently passed in the Senate and now awaits a final green light from Governor Andrew Cuomo before going into effect. Among other changes to the current law, the bill lowers the standard of proof for workplace harassment, mandates communication of the employer’s sexual harassment prevention policy in both English and the primary language of the employee, and provides for punitive damages in cases of workplace harassment. With this lower standard for sexual harassment and discrimination in the workplace, New York employers seeking to protect themselves from legal action must take the necessary steps to educate employees on appropriate workplace behavior and implement procedures reflective of the pending legislation. Employers may need to revisit their internal discrimination and sexual harassment policies to mitigate risk of being blindsided by legal action.

Under existing law, harassment must be “severe or pervasive” to satisfy the burden of proof, and the complainant must submit documentation that he or she complained internally before seeking judicial redress. The new bill cripples these requirements, relaxing the burden of proof so that potential victims of sexual harassment may seek legal recourse without submitting a complaint internally. New York employers should further note the changes to nondisclosure agreements and mandatory arbitration. New guidelines greatly restrict an employer’s ability to include nondisclosure or confidentiality clauses in settlement agreements relating to discrimination claims. The bill also strips employers of their ability to enforce mandatory arbitration clauses found in employment contracts.

Not only does the bill modify the standard of proof for harassment claims, but it also guts the Faragher-Ellerth defense—a two-pronged affirmative defense often used by employers attempting to defeat discrimination claims. Previously, employers could assert Faragher-Ellerth if an employment action, such as suspension or termination, had not been taken against the complainant. In efforts to sidestep responsibility, employers had to prove both the exercise of “reasonable care” toward correction of the problem and failure of the complainant to avail himself of corrective opportunities.

Governor Cuomo is expected to sign this bill into law shortly, given his praise for the bill in his op-ed for the New York Daily News. Prudent employers will reexamine and update internal policies relating to workplace discrimination and harassment claims – or risk shutting the stable door after the horse has bolted.

For more information about Walsh’s employment law practice or to seek information on how to implement best practices relating to workplace discrimination and harassment, please contact Peter Pizzi at 973-757-1011 or [email protected].