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In addition to federal nondiscrimination laws, the New York State Human Rights Law provides broad workplace discrimination protections to employees in that state. New York’s discrimination laws are discussed below, including a new law adopted on August 12, 2019, which expands the scope of anti-harassment and anti-discrimination protections for employees.
Covered Employers
The state law generally applies to employers with four or more employees. However, in the case of an action for discrimination based on sex, with respect to sexual harassment only, the term “employer” includes all employers within the state.
Protected Classes
A protected class is a group of individuals with common characteristics who are legally protected from discrimination on the basis of that characteristic. Protected classes in New York include groups based on the following characteristics:
- Age
- Color
- Creed
- Disability
- Domestic violence victim status
- Familial status
- Gender expression
- Gender identity
- Marital status
- Military status
- National origin
- Predisposing genetic characteristics
- Race
- Sex
- Sexual orientation
Unlawful Practices
- In general: New York labor laws prohibit employers from discriminating against individuals who belong to a protected class. Labor discrimination includes refusing to hire or employ, firing, or otherwise discriminating against an individual in compensation or in terms, conditions, or privileges of employment.
- Harassment: Effective Oct. 11, 2019, it will be illegal for employers to subject any individual to harassment regardless of whether the harassment would be considered severe or pervasive. Specifically, the new law adopted on August 12:
- Enables employees to pursue harassment claims without having to prove that unwelcome behaviors are severe or pervasive (though they still need to be more than petty or trivial);
- Requires employers to provide a copy of their sexual harassment prevention policies to employees at the time of hire and annually thereafter (as part of the sexual harassment prevention training);
- Prohibits employers from using nondisclosure agreements to prevent disclosure of the underlying facts and circumstances of a harassment or discrimination claim except in limited circumstances at the complainant’s request;
- Protects an employee’s rights to pursue complaints by requiring that all nondisclosure agreements in employment contracts include language to notify employees that they may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation;
- Prohibits employers from requiring employees to submit their harassment and discrimination claims to arbitration before starting any legal action; and
- Increases the statute of limitations for filing a sexual harassment claim from one to three years (discrimination claims must still be filed within one year of the alleged conduct).
- Equal pay: Beginning Oct. 8, 2019, state law will also specifically prohibit employers from paying different wages to employees solely because they belong to a protected class. This means that employers must pay the same wages to employees who perform substantially similar work. However, the law allows wage differentials when they are based on one of the following factors:
- A merit system;
- A seniority system;
- A system which measures earnings by quantity or quality of production; or
- A bona fide factor other than status within one or more protected classes, such as education, training, or experience.
- Mandatory arbitration: Beginning Oct. 11, 2019, employers cannot require employees to submit their discrimination claims to mandatory arbitration. Mandatory arbitration is a term or provision contained in a written contract that:
- Requires the parties to submit to arbitration before starting any legal action; and
- Limits the facts and circumstances of the claim to only those found or determined by the arbitrator or arbitration panel (the language in these cases usually makes the arbitration’s findings final and not subject to independent court review).
Nondisclosure agreements
Beginning Oct. 11, 2019, employers cannot use nondisclosure agreements to prevent the disclosure of the underlying facts and circumstances of a discrimination claim or action. However, an exception exists for situations where the person bringing the claim sets confidentiality as a condition for reaching a settlement, agreement or other resolution to the claim. In these circumstances, the terms and conditions must be provided in writing to all the parties involved. Nondisclosure agreements are void to the extent they prohibit or restrict individuals from:
- Initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with an investigation conducted by the appropriate local, state or federal agency; or
- Filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the individual is entitled.
In addition, beginning Jan. 1, 2020, nondisclosure agreements related to any future discrimination claim are unenforceable unless the employee or potential employee is notified that the agreement does not prohibit the employee from speaking with:
- Law enforcement
- The equal employment opportunity commission
- The division of human rights
- A local commission on human rights
- The employee’s attorney
Special Note: Filing a Discrimination Claim
Workplace sexual harassment claims must be filed within 3 years of the alleged conduct. Other discrimination claims must be filed within one year.
Don’t get caught off guard by new employment regulations. Penalties for non-compliance can be steep. Get alerts and a wealth of information from GTM’s HR services. Plus as a payroll client, we’ll keep you informed of new rules and laws so you can focus on growing your business. Request a free quote today.
Source: “New York Discrimination” and “New York Expands Employee Protections Against Harassment and Discrimination” by Zywave
