New York State Governor Andrew M. Cuomo signs legislation enacting sweeping new workplace harassment protections

On August 12, 2019Governor Andrew M. Cuomo signed legislation (S.6577/A.8421) to enact sweeping new workplace harassment protections, fulfilling a key component of Governor Cuomo's 2019 Women's Justice Agenda by:

1. Eliminating restriction that harassment be "severe or pervasive" in order for it to be legally actionable;

2. Mandates that all employment contract non-disclosure agreements [NDAs] include language allowing employees to file a complaint of harassment or discrimination; and

3. Extends statute of limitations for employment sexual harassment claims filed from one year to three years.

To further protect workers and hold abusers accountable, this legislation:

Lowers the high bar set for employees to hold employers accountable for sexual harassment by amending under the New York Human Rights Law to make clear that conduct need not be  "severe or pervasive" to constitute actionable conduct;

Protects employees' rights to pursue complaints by mandating that all non-disclosure agreements in employment contracts include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation;

Extends the statute of limitations for employment sexual harassment claims filed with the Division of Human Rights from one year to three years;

Requires employers to provide their employees with notice about the employer's sexual harassment prevention policy in English as well as the employee's primary language;

Expands the coverage of the Human Rights Law to all employers in the state;

Extends protections against all forms of discrimination in the workplace to all contractors, subcontractors, vendors, consultants, or others providing services; and against all forms of discriminatory harassment to domestic workers;

Requires courts to interpret the Human Rights Law liberally regardless of the federal rollback of rights;

Prohibits mandatory arbitration to resolve cases of discrimination and harassment in the workplace;

Updates the power of the Attorney General to enforce the Human Rights Law; and

Requires a study on how best to build on recent sexual harassment prevention laws to combat all types of discrimination in the workplace and a review of sexual harassment policies every four years.

A copy of the text of this measure is available from NYPPL as an attachment to an e-mail. Send your request to publications@nycap.rr.com with "workplace harassment protections" as the subject.

Imposing different penalties on employees involved in a physical confrontation alleged to constitute discriminatory disciplinary action

If two workers get involved in a physical confrontation, must the employer mete out the same disciplinary penalty to each?

A technician [Technician] and her superior, a Team Leader, [Leader] were pointing their fingers at each other, presumably to emphasize points that they were making. When Leader grabbed Technician 's finger, Technician responded by slapping Leader.

The Employer dismissed the Technician. Technician sued, complaining that her termination constituted "discriminatory disciplinary action" because Leader had not been terminated as well.

The Circuit Court rejected Technician 's theory, commenting that Employer was not required to treat each "escalation" of the confrontation - finger pointing to finger grabbing to slapping - the same. In addition, the Court said another factor was that the two employees did not hold positions of similar rank. The decision by the Eighth Circuit U.S. Court of Appeals also indicates that while Leader "had a spotless disciplinary record, Technician had a record of disciplinary problems."

The court upheld Technician's dismissal, commenting that the respective actions by Leader and Technician "are clearly differentiated because the incident involved two separate levels of escalation" ranging from the mutual pointing of fingers to a slap in retaliation for the grabbing of the finger.

The decision is posted on the Internet at:

https://www.leagle.com/decision/19961042920fsupp12211007

New York State's Human Rights Law amended to prohibit employment discrimination because of religious attire or facial hair

On August 9, 2019 New York State's Governor Andrew M. Cuomo signed legislation* prohibiting employment discrimination based on religious attire, clothing or facial hair. The new law amends the New York State Human Rights Law to make clear that employers cannot refuse to hire, attain, promote, or take other discriminatory action against an individual for wearing attire or facial hair in accordance with tenets of their religion. 

 

The legislation makes clear the protections of the New York State Human Rights Law, which also prohibits employers from treating applicants or employees differently because of that person's religious beliefs, and it requires employers to reasonably accommodate an employee's religious practices. The new law reaffirms the Governor's longstanding commitment to religious inclusion and equality.

The Act amends §296.10(a) of the Executive Law, New York State's Human Rights Law, to read as follows:**

                                                                  

(a) It shall be an unlawful discriminatory practice for any employer,  or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or other holy day in accordance with the requirements of his or her religion or the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion, unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's or prospective employee's sincerely held  religious observance or practice without undue hardship on the conduct of the employer's business. Notwithstanding any other provision of law to the contrary, an employee shall not be entitled to premium wages or premium benefits for work performed during hours to which such premium wages or premium benefits would ordinarily be applicable, if the employee is working during such hours only as an accommodation to his or her sincerely held religious requirements. Nothing in this paragraph or paragraph (b) of this subdivision shall alter or abridge the rights granted to an employee concerning the payment of wages or privileges of seniority accruing to that employee.

The amendment takes effect "on the sixtieth day after it shall have become a law."

* Senate 4037, Assembly 4204

** The text set out in blue and underscored is new.