The New York Human Rights Law has long prohibited employers from engaging in unlawful discrimination or harassment of employees. It has historically applied only to employers with four or more employees. However, as of February 8, 2020, the law applies to all employers in New York, regardless of size.
This change in the law means that every employer must familiarize itself with statutory anti-discrimination and anti-harassment obligations. That task is made more difficult by the fact that these obligations have evolved significantly in recent years, as New York has become one of the most pro-employee jurisdictions in the United States.
For example, New York historically followed federal law, under which an employee alleging that he or she was subjected to a hostile work environment must prove “severe and pervasive” discriminatory conduct. This is a high bar and, as a result, courts were prone to dismissing hostile work environment claims without a trial. In 2019, the Human Rights Law was amended to substantially ease the burden on plaintiffs. It provides that an employee can prove a discrimination or harassment claim by showing that he or she was subjected to inferior treatment because of his or her membership in a protected category (e.g, race or gender), so long as the offending conduct rises above “petty slights” or “trivial inconveniences.”
In 2019, the New York Legislature also eliminated an important defense for employers to discrimination and harassment claims. Under the previous iteration of the Human Rights Law, an employer could defeat a discrimination claim by proving that it notified employees of procedures for complaining of discrimination and harassment, and the plaintiff failed to follow them. In contrast, the new law explicitly states that the fact that an employee “did not make a complaint about harassment” to the employer will not be determinative of the employer’s liability.
Recent changes to the Human Rights Law also increase employers’ monetary exposure in the event of a lawsuit. In egregious cases, juries may now award punitive damages, which are designed to punish the employer rather than compensate the plaintiff. In addition, plaintiffs will be entitled to recover their attorneys’ fees if they succeed in court, leaving a losing employer to pay for its own defense and its employee’s lawyers.
The pace at which employment laws in New York are changing cannot be understated. And, those laws now effect every single employer in the state, even those that are the smallest. Competent employment counsel is essential for every business today; an ounce of prevention is worth a pound of cure.