The #metoo era has brought renewed attention to sexual harassment in the workplace. New York State, in particular, has been reviewing its sexual harassment laws and Governor Cuomo has supported enhancing the protections of the State's anti-discrimination and sexual harassment laws. On June 19, 2019, after debates and hearings, New York's lawmakers passed a bill which will significantly overhaul the State's sexual harassment laws.

New York's workplace discrimination laws are found in the Executive Law and are collectively referred to as the New York State Human Rights Law. Though different in terms of procedure, the law effectively mirrored the federal employment discrimination laws, with some minor differences, particularly concerning disability discrimination. Indeed, many employees suing employers for workplace sexual harassment would rely on both the federal and New York State laws. Courts reviewing workplace sexual harassment claims routinely noted that the claims are analyzed under the same framework and standard.

Two major hurdles faced by sexual harassment victims were that they must have proved the conduct directed at them was "severe or pervasive." Courts struggle with this ambiguous standard and have reached inconsistent results in determining whether alleged sexual harassment meets the standard. Also, employers had a defense to sexual harassment claims known as the Faragher-Ellerth defense. Oftentimes, victims of sexual harassment could not obtain relief in court because the employer asserted the Faragher-Ellerth defense which allowed employers off the hook if they took steps to prevent sexual harassment and if the employee did not take reasonable steps to bring harassment to the employer's attention. In other words, even if an employee was sexually harassed, the employer may not have been liable.

New York sought to change many of these inequities. The bill's memo notes that the legislature believed it necessary to bring New York "up to speed" with accepted reforms. Accordingly, the legislature implemented many changes to the State's Human Rights Law. These changes are summarized below:

• Previously, most parts of the State's discrimination laws applied only to employers with four or more employees. The amendments eliminate this threshold. Now, the discrimination laws apply to all employers in the State and apply to all types of discrimination, not just sex based discrimination.
• The amendments eliminate the requirement that the victim show the conduct was severe or pervasive. Instead, the victim need only prove "inferior" treatment because of the victim's membership in a protected class such as sex, race, national origin, disability, sexual orientation, gender identity, genetic characteristics, familial status, marital status, domestic violence victim status, or age. Further, the amendments remove the Faragher-Ellerth affirmative defense. But, the law provides an affirmative defense to employers who can show a similar employee with similar protected characteristics as the victim would perceive the conduct to be petty slights or trivial inconveniences.
• The existing law prohibited employers from discriminating against non-employees in its workplace. The amendments extend that provision to cover all protected categories recognized by the Human Rights Law.
• The amendments allow victims of all types of discrimination covered by the law to obtain punitive damages against private employers.
• Previously, only victims of sex discrimination could obtain attorneys' fees if they were successful in court. The amendments allow recovery of attorneys' fees for claims for all types of unlawful discrimination.
• The amendments require courts to construe New York's anti-discrimination laws liberally and independent of the way in which similar federal laws may be interpreted by the courts. The amendments compel courts to construe exceptions and exemptions narrowly to "maximize deterrence."
• The changes prohibit employers from mandating that employees submit claims of employment discrimination to arbitration, instead of prosecuting their cases in court.
• The amendments prohibit employers from requiring that employees sign non-disparagement agreements which would limit their ability to disclose facts about future discrimination to law enforcement or other forums which prosecute discrimination claims.
• Typically, settlement agreements for employment discrimination claims include confidentiality agreements which prohibit the victim from talking about the harassment. The bill regulates these provisions and prohibits employers from compelling the victim to agree to the provision. Now, confidentiality clauses are valid only if the victim wants the provision included.
• The bill expands the requirements of employers to provide sexual harassment training and to implement sexual harassment policies.
• Under existing law, victims of sexual harassment must file their claims of discrimination in court within three years of the conduct, or with the New York State Division of Human Rights within one year of the conduct. The amendment increases the statute of limitations for filing with the Division of Human Rights to three years. This change applies only to sexual harassment claims and not to any other category of discrimination.

These amendments to the Human Rights Law were passed by New York with bipartisan support in the legislature. This shows the nearly universal support for strengthening anti-discrimination laws and sexual harassment laws, in particular. While some of the law's provisions may still leave room for interpretation, and others, such as the regulations concerning arbitration, may conflict with federal law, the amendments are nonetheless important and significant revisions to the State's anti-discrimination laws.

Employers who have not yet taken notice of New York's intent to eliminate workplace discrimination and sexual harassment should pay close attention now. With the elimination of a key defense, the lowering of the standard of proof for sexual harassment, and the availability of attorneys' fees and unlimited punitive damages, employers face severe consequences for discrimination in the workplace.

Employees can now enjoy enhanced workplace protections in New York. The amendments provide an easier path for employees to prove discrimination claims and increase the window in which sexual harassment victims may file claims of discrimination with the State.

This article about the amendments to the New York State discrimination laws was written by Matthew Weinick, Esq., a partner at the Long Island employment law firm Famighetti & Weinick, PLLC. Mr. Weinick represents employees in claims of discrimination, retaliation, and unpaid wages and overtime. For more information about New York's discrimination laws or Mr. Weinick's practice, visit the firm's website at http://linycemploymentlaw.com.