Speaker Carl Heastie, Labor Committee Chair Marcos Crespo, Governmental Operations Chair Michele Titus and Ethics and Guidance Committee Chair Aravella Simotas today announced the Assembly has passed legislation to increase protections against discriminatory harassment in the workplace (A.8421, Simotas). In 2018, the legislature enacted a number of 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.
Earlier this year, the legislature held hearings to receive testimony from victims, advocates and experts regarding sexual harassment in the workplace, which was used to craft today's legislation.
"For too long, workplace harassment has burdened workers personally, financially and professionally," said Assemblymember Marcos Crespo. "Today's legislation provides comprehensive reforms to ensure employees from every sector have access to recourse. Many thanks to the brave men and women who courageously told their stories and helped us shape this critical legislation."
Currently, New Yorkers are protected from sexual harassment under the federal Civil Rights Act and the state Human Rights Law, but that harassment must meet the high standard of being "severe or pervasive" to entitle its target to compensation. Today's legislation would lower that burdensome standard for any harassment that needs only to rise above the threshold of petty slights or trivial inconveniences to be considered unlawful.
Under the bill, New York's Human Rights Law would be expanded to cover all employers in the state. Current law excludes employers with fewer than four employees, leaving small business workers without the protections they need.
The measure would make it an unlawful discriminatory practice for an employer, licensing agency, employment agency or labor organization to subject any individual to harassment because of their membership in one or more protected classes, or because they have opposed any practices prohibited under the Human Rights Law.
The bill would also eliminate part of the Faragher/Ellerth defense, which allows employers to avoid liability for harassment because an employee failed to file a formal complaint or follow a particular reporting procedure. This change will protect workers who are unable to make complaints without facing the risk of retaliation.
The legislation would provide a wide range of other protections and preventative measures. The bill would:
- Extend protections for non-employees in the workplace to all protected classes;
- Allow 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.
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