NY New York Eases Burden of Proof for Discriminatory Harassment
August 22nd, 2019
Stephen Zweig and Phillip Davidoff at FordHarrison
Executive Summary. On August 12, 2019, New York State (NYS) amended its Human Rights Law to make it easier to prove discriminatory harassment for members of all protected classes, including age, race, creed, color, national origin, sex, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristic, familial status, marital status, and domestic violence victim status. The amendment provides significant additional protections for employees and independent contractors who were sexually harassed.
How Has NYS Harassment Law Changed Over the Last Two Years?
Last year, NYS broadened protections against sexual harassment by requiring all employers, regardless of size, to: i) adopt a written sexual harassment policy, with explicit substantive and process protections for employees; ii) train all employees as soon as possible after their start date and thereafter, annually, on sexual harassment prevention using interactive training programs; and iii) provide access to a complaint form for reporting sexual harassment to the State Division of Human Rights.
This year, NYS expanded harassment protections further to cover members of all protected classes. Most significantly, NYS lowered its standard for proving discriminatory harassment. Prior to the amendment, NYS had followed the federal proof standard, requiring “severe or pervasive” harassment to prove a claim. Under that standard, conduct that was not severe or pervasive enough to create an objectively hostile or abusive work environment was not unlawful, and both federal and state courts in New York had ruled that isolated acts and stray remarks, unless very serious, did not meet this threshold and even multiple acts may not be severe or pervasive enough to find discriminatory harassment. NYS also extended from one to three years the time within which to bring a sexual harassment complaint to the State Division of Human Rights. This amendment becomes effective October 11, 2019.
What is the Lower Burden of Proof for Discriminatory Harassment?
As amended, the NYS Human Rights Law explicitly states that harassment based on a protected class is an unlawful discriminatory practice “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims” (emphasis added). Moreover, the employer is limited in its defense against such a claim to “what a reasonable victim of discrimination … would consider petty slights or trivial inconveniences.”
The amendment defines discriminatory harassment as subjecting “an individual to inferior terms, conditions or privileges of employment” because of their membership in a protected class. NYS now extends this protection to non-employees as well as employees. The individual claiming harassment does not need to demonstrate the existence of another individual whose treatment compares to their experience, and it is not a defense that the individual did not complain to the employer at the time the harassment occurred.
The Bottom Line. New York State now has one of the most lenient thresholds in the nation for proving discriminatory harassment. Notably, this amendment to New York State law essentially aligns its proof standard for discriminatory harassment with the proof standard applicable to employers in New York City under the NYC Human Rights Law. Employers throughout the state are on clear notice to act proactively, not reactively, to situations that can produce discriminatory harassment claims.
This blog was written by Stephen Zweig and Phillip Davidoff at FordHarrison, which authors our Hiring, Firing and Discipline for Employers and An Employer's Guide to FMLA and ADA. You can find the original blog and their Legal Alerts on their website