There are federal and state laws that offer some protections against discrimination and harassment, but if you have ever faced these unfortunate situations, you may know that there are many exceptions: contractors, harassment that is not considered “severe and pervasive”, a short period for filing complaints and non-disclosure agreements that serve to protect employers while keeping workers in the dark.
New York state is one of the leaders in the country in the fight against workplace discrimination and harassment. In August 2019, Governor Cuomo signed into law heightened protections against discrimination and harassment that expand the reach of the New York State Human Rights Law. Over the following year, these new protections have gone into effect.
Here are some of the most important points and what they may mean for you:
- Domestic workers, such as maids, housecleaners, drivers, etc., are protected from discrimination and harassment based on any of the law’s protected classes
What it means: Domestic workers have sometimes been excluded from certain discrimination and harassment protections because of their unique status of working in people’s homes, either through an agency or as independent contractors. Now all domestic workers are protected by the law.
- Illegal harassment is any action that results in “inferior terms, conditions or privileges of employment.” It does not need to be “severe or pervasive” to be considered illegal.
What it means: The bar for proving illegal discrimination and harassment can be challenging to meet, especially when harassment is more subtle or consists of “microaggressions” that may be not be as “severe” as other types of harassment. The new law means that more subtle actions can be considered illegal harassment if they create any “inferior terms” of employment, even if they are not “severe or pervasive.”
- A complaining worker does not need to show that a similar worker was treated more favorably
What it means: In some instances, victims were required to show that a “similarly situated” worker was treated more favorably. This is no longer a requirement, which makes sense especially for workers in small business and non-employees in the workplace.
- A complaining worker does not need to have previously complained or filed a grievance with their employer
What it means: Complaining workers no longer need to prove that they have previously made a complaint about the discrimination or harassment they have experienced or that any complaint they made met a particular standard. This protects workers who may believe that their job is in danger or that they may be subjected to even more harassment or discrimination if they made an internal complaint.
- The law now protects “non-employees working in the workplace,” including contractors, subcontractors, vendors, consultants, and others
What it means: this is huge! The economy continues to transform away from traditional employment relationships and toward new models of work, such as freelance and gig worker arrangements. The updated law now protects all people in their workplace, regardless of how they are classified for wage, tax and other purposes. This also protects people who travel to other sites for their work, such as vendors and consultants.
- Punitive damages and attorneys’ fees may be awarded in lawsuits under this law
What it means: With additional damages available, attorneys may be able to take on more harassment and discrimination cases, since they have a better chance of receiving fair compensation for their work in addition to additional compensation for victims.
- Settlements of discrimination and harassment claims may contain confidentiality clauses only if the complaining worker desires confidentiality and if such a clause is written in plain English and any other primary language of the complaining worker.
What it means: as we have all learned in the MeToo era, victims are too often coerced into signing broad non-disclosure agreements that prevent them from speaking out about their experiences. Now these clauses are subject to more scrutiny. The updated law prevents victims from being taken by surprise by a non-disclosure agreement (NDA) in a settlement they may reach with an employer.
- Confidentiality clauses cannot prevent workers from speaking with attorneys, law enforcement, or agencies such as the New York State Division of Human Rights, the EEOC, or other similar agencies
What it means: a victim of harassment or discrimination will be punished for speaking with an attorney, law enforcement, or government agencies such as the EEOC or New York State Division of Human Rights about their experiences and their rights. This is crucial especially if the victim feels that a settlement was unfair or the discrimination or harassment is ongoing.
- The law applies to all employers within New York state, regardless of size
What it means: many employment laws and protections only apply to employers who reach certain size or revenue thresholds. The New York State Human Rights law applies to all employers, no matter how many employees they have.
- The statute of limitations is extended to three years for cases of sexual harassment
What it means: there are many reasons that victims of discrimination and harassment may not be able to report or file a complaint right away. While victims should contact counsel as soon as possible to explore their options, the law recognizes that especially in cases of sexual harassment, it may be too painful, too dangerous, or otherwise too difficult for victims to come forward in the immediate aftermath of an incident.
For more information and fact sheets, see New Workplace Discrimination and Harassment Protections at the New York State Division of Human Rights website.