Hunton Employment & Labor Perspectives

Yesterday, Governor Cuomo signed the last of several bills that massively overhauls New York State’s discrimination and harassment laws.  The changes, some of which are effective immediately, are explained in more detail here.

The main takeaways are as follows:

1. It will be easier for Plaintiffs to prove harassment.  Specifically, Plaintiffs are no longer required to establish that the harassing conduct was “severe or pervasive.”  On the flip side, employers can no longer rely on the Faragher/Ellerth defense.
2. It will be easier for Plaintiffs to prove discrimination.  Specifically, Plaintiffs are no longer required to show the existence of comparators—i.e., similarly-situated individuals outside of their protected class who were treated more favorable.
3. Attorney fees awards are now mandatory for prevailing Plaintiffs.
4. Punitive damages are available for all discrimination, harassment, and retaliation claims.
5. Non-disclosure/confidentiality clauses in settlement agreement are now banned for all discrimination and harassment claims unless it is “the complainant’s preference.”
6. Pay equity protections are now expanded to all protected classes—not just gender.
7. Employers are severely limited in requesting and relying upon an applicant’s prior salary history before making an employment offer.

Employers are advised to take a fresh look at their policies and practices to ensure that they are in line with all the recent changes in New York employment laws.