This month, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, including the New York State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), general business law, and civil practice law and rules. Some of the most important changes involve extending legal protections against sexual harassment to previously unprotected workers, including independent contractors and other non-employees; prohibiting mandatory arbitration of sexual harassment claims and non-disclosure provisions in sexual harassment settlement agreements; and requiring employers to provide sexual harassment training to employees.
As of April 12, 2018, the NYSHRL now protects all non-employees in New York State against workplace sexual harassment. Most other state employment discrimination statutes cover only employees, leaving most independent contractors (including models, actors, and other entertainers who are typically represented by agents), consultants, and other non-employees with few legal protections against workplace discrimination. The new changes to the NYSHRL, however, extend sexual harassment protections under state law to any “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.” Under the NYSHRL, an employer is liable for sexual harassment of a non-employee if the employer knew (or should have known) about the harassment but did not take immediate and appropriate corrective action.
We have previously reported on the prevalence of—and problems with—mandatory arbitration agreements (which require employees to agree to resolve any future discrimination and harassment claims in a private forum, rather than in court) and nondisclosure provisions, better known as NDAs, in settlement agreements (which swear employees to silence about their experiences of discrimination in exchange for settling their claims). Beginning July 11, 2018, however, the New York general business law will be amended to prohibit New York State employers from forcing employees to arbitrate sexual harassment claims—including nullifying any arbitration agreements signed prior to that date. And amendments to New York’s civil practice law and rules and general municipal law will prohibit employers from including NDAs in settlement agreements concerning workplace sexual harassment claims unless the plaintiff specifically voices a preference for including the nondisclosure language. Together, these changes will hopefully begin to end the silence around workplace sexual harassment by giving victims of sexual harassment the chance to pursue their claims in court and share their stories of discrimination with others, unrestricted by silencing clauses in settlement agreements.
Finally, New York State and New York City will also now instate mandatory sexual harassment trainings and policies for all employers. As of October 9, 2018, all New York State private employers will be required to provide annual sexual harassment training to employees and adopt a sexual harassment policy, with the option of adopting a state-provided training program and policy or creating their own, so long as it meets or exceeds the state standards. Similarly, the New York government will establish a unit to receive and investigate sexual harassment claims and amend the state executive, legislative, judiciary, general municipal, and public authorities laws to set forth uniform standards for sexual harassment policies for all branches of New York state and local governments.
And beginning April 1, 2019, New York City employers with 15 or more employees will be required to hold sexual harassment trainings, including providing sexual harassment training to new employees within 90 days of hire; training interns as well as employees on sexual harassment policies; and retaining training records and employee acknowledgment forms for at least three years. The New York City Commission on Human Rights—the agency responsible for interpreting and enforcing the NYCHRL—will develop online tools for this mandated sexual harassment training, as well as information sheets and posters on sexual harassment rights and responsibilities under the NYCHRL, which must be displayed in the workplace and distributed to employees. In addition, the NYCHRL’s statute of limitations for gender-based harassment claims will be extended from one year to three years, and the NYCHRL’s gender-based harassment provisions will now apply to all employers in New York City, regardless of number of employees.
If you have experienced sexual harassment in the workplace, including as an independent contractor, consultant, or intern, contact The Harman Firm, LLP, for a free consultation.