On June 25, we wrote about new anti-harassment legislation that we expected Governor Cuomo to sign into law. On August 12, he did, in fact, sign that legislation and expanded the definition of what is considered legally actionable harassment in the workplace. The traditional standard that harassment must be “severe and pervasive” will no longer apply. Now, a complainant must show that the conduct in question rises above the level of “petty slights and trivial inconveniences.”
Additional changes are:
NYS employers of any size are covered by anti-discrimination and anti-harassment laws. Previously, this was only true in sexual harassment cases.
Traditionally, a NYS employer had a strong defense to a claim if an employee did not use the internal complaint procedure. Now, whether an employee made a complaint or not will not be determinative of the employer’s liability in the employee’s claim. Individuals claiming discrimination will not be required to show that a comparator was treated better than them to allege or establish such a claim.
Punitive damages will be available in discrimination, harassment, and retaliation cases. A prevailing employee “shall” be awarded attorney’s fees, while a prevailing employer may seek attorneys’ fees if it can show the employee brought a frivolous claim.
Employers must distribute their harassment policy both at the time of hire and during annual sexual harassment prevention training. The policy must be given in English as well as in the language identified by each employee as that employee’s primary language so long as NYS published a model policy in that primary language.
Most of these changes go into effect 60 days after the law was signed. The law also expands the definition of “employer” to include not only a corporation or entity, but “any person” acting as the employer. This means individuals acting as an employer as defined by law can be held personally liable for illegal conduct. Previously, individuals could only be personally liable for discrimination and/or harassment if they “aided and abetted” the discriminatory conduct.
As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.