New York Law Alert: Discrimination Against Victims of Domestic Violence
On August 20, 2019, New York Governor Andrew Cuomo signed legislation (NY S.B. 1040) adding status as a victim of domestic violence to the protected classes under the state’s Human Rights Law and thereby prohibiting employers from discriminating against victims of domestic violence. Specifically, it is an unlawful discriminatory practice for an employer, because of any individual’s status as a victim of domestic violence, to:
Refuse to hire, employ, or license;
Bar or discharge from employment; or
Discriminate against in compensation or in terms, conditions, or privileges of employment.
The law includes prohibitions against inquiring, generally or within a job application, about an individual’s status as a victim of domestic violence, reasonable accommodation protections, notice requirements, certification provisions, and informational confidentiality.
The law is effective November 18, 2019.
Read NY S.B. 1040
Increased Antidiscrimination Protections
On August 12, 2019, New York Governor Andrew Cuomo signed legislation (A.B. 8421) increasing protections under the state’s antidiscrimination law as follows:
Effective August 12, 2019, every employer must provide employees, in writing in English and in the language identified by each employee as their primary language, at the time of hire and at every annual sexual harassment prevention training provided, a notice containing the employer’s sexual harassment prevention policy and the information presented its sexual harassment prevention training program.
Effective October 11, 2019:
A private employer is defined as any person, company, corporation, labor organization, or association.
Mandatory arbitration clauses related to discrimination are prohibited and nondisclosure agreements related to discrimination are prohibited. Any nondisclosure agreement entered into on or after January 1, 2020 that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable unless it notifies the employee or potential employee that it does not prohibit them from speaking with law enforcement, the federal Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney.
The state’s harassment provisions are expanded as follows:
It is unlawful for an employer to subject any individual to harassment because of their age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status (protected status), for opposing illegal behavior, or for filing a complaint, regardless of whether the harassment would be considered severe or pervasive under precedent applied to harassment claims. Domestic workers are afforded these protections as well.
Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in one or more of those protected categories. Unlawful discriminatory practices relating to non-employees are expanded, as well, as opposed to only protecting non-employees against sexual harassment.
The fact that the individual did not complain about the harassment to the employer is not determinative of whether the employer is liable.
An employee is not required to demonstrate the existence of an individual to whom the employee’s treatment must be compared.
It is an affirmative defense to liability that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.
Effective February 8, 2020, the state’s Human Rights Law (at N.Y. Exec. Law § 292) extends its coverage to all employers within the state, as opposed to excluding those with fewer than four employees.
Effective August 12, 2020, complaints of sexual harassment in employment must be filed within three years after the alleged unlawful discriminatory practice.
Read NY A.B. 8421
Discrimination Against Religious Attire
On August 9, 2019, New York Governor Andrew Cuomo signed legislation (A.B. 4204) prohibiting employers from discriminating against any person based on their attire, clothing, or facial hair that is worn in accordance with their religion’s requirements.
The law is effective October 8, 2019.
Read NY A.B. 4204
On July 29, 2019, New York Governor Andrew Cuomo signed legislation (S.B. 5791) amending N.Y. Lab. Law § 215 (penalties and civil action; prohibited retaliation) to add discrimination or retaliation against immigrant employees within the penalty provisions. Specifically, the law adds that to threaten, penalize, or in any other manner discriminate or retaliate against any employee includes both:
Threatening to contact (or contacting) U.S. immigration authorities; and
Otherwise reporting (or threatening to report) an employee’s suspected citizenship, immigration status, or that of an employee’s family or household member to a federal, state, or local agency.
The law is effective October 27, 2019.
Read NY S.B. 5791