United States: Update: Governor Cuomo Signs Significant Changes To New York Discrimination And Harassment Legislation Into Law – Employer Compliance Required

Last Updated: August 30 2019
Article by Eric Raphan and Lindsay Colvin Stone

On August 12, 2019, Governor Andrew Cuomo signed into law S.6577, a bill implementing a series of sweeping changes to the New York State Human Rights Law ("NYSHRL"). As we previously reported, S.6577 provides for a number of notable updates to the NYSHRL designed to strengthen state protection for victims of sexual harassment. However, the signing of S.6577 also implements a series of changes that stand to significantly impact employers with respect to all claims of employment discrimination, not just sexual harassment. This post summarizes key changes to the NYSHRL created by S.6577, along with deadlines for employer compliance.

Mandatory Liberal Construction for NYSHRL

Effective Date: August 12, 2019

In an attempt to align the NYSHRL and New York City Human Rights Law ("NYCHRL"), S.6577 requires courts to construe the NYSHRL, like its city-law counterpart, "liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws including those laws with provisions worded comparably to the provisions of [the NYSHRL] have been so construed." This construction will immediately apply to all claims filed after Governor Cuomo signed S.6577 into law.

Required Distribution of Anti-Sexual Harassment Policies and Training

Effective Date: August 12, 2019

Under the NYSHRL, employers must conduct mandatory annual sexual harassment training. S.6577 amends this requirement to provide, at the time of hire and during each annual training session, a "a notice containing [the] employer's sexual harassment prevention policy and the information presented at such employer's sexual harassment prevention training program." The notice must be both in English and the primary language identified by each employee. The Commissioner of Labor has been instructed to prepare and distribute a model notice.

Non-Disclosure Provisions in Settlement Agreements Restricted

Effective Date: October 11, 2019

As a result of previous changes to the NYSHRL, New York employers were prohibited from including a non-disclosure provision in settlement agreements covering sexual harassment claims unless the claimant specifically agreed that the provision was her preference, and was given 21 days to consider the provision and 7 days to revoke consent. As of October 11, 2019, this restriction will apply to all claims of "discrimination, in violation of laws prohibiting discrimination, including, but not limited to, [the NYSHRL]." New York employers must take the following steps to include a non-disclosure provision in any settlement agreement related to claims of discrimination after October 11, 2019:

  • The non-disclosure provision must be executed in two parts. The first part must acknowledge that it is the employee's preference to enter such agreement and that the employee is being given 21 days to consider the agreement and 7 days to revoke consent after the 21-day period has expired. The second part must be executed after the 21-day period.
  • The non-disclosure provision must be provided in writing to all parties and "in plain English, and, if applicable, the primary language of the complainant."
  • Any non-disclosure provision will be void and unenforceable if it prohibits or restricts a complainant from: (i) initiating, testifying, assisting, complying with a subpoena, or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled."

In addition, after January 1, 2020, any contract or agreement between an employer and employee that prevents the disclosure of "factual information related to any future claim of discrimination" is void and unenforceable unless the agreement "notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the equal employment opportunity commission, the state division of human rights, a local commission on human rights, or an attorney retained by the employee or potential employee."

Mandatory Arbitration Clauses for Discrimination Claims Banned

Effective Date: October 11, 2019

Reforms to the NYSHRL in April 2018 rendered void any agreements requiring the submission of sexual harassment claims to mandatory binding arbitration. S.6577 expands this provision to prohibit the submission of all discrimination claims to mandatory binding arbitration. However, whether this section of S.6577 is ultimately enforceable remains to be seen. On June 26, 2019, Judge Denise Cote of the United States District Court for the Southern District of New York held that the NYSHRL's proscription of mandatory arbitration clauses for sexual harassment claims was inconsistent with the Federal Arbitration Act and accordingly invalid. Only time and judicial review will determine whether S.6577's ban on mandatory arbitration agreements for discrimination claims will survive.

Lower Standard for Proving Discriminatory Harassment

Effective Date: October 11, 2019

S.6577 changes the NYSHRL's requirement regarding what an employee must show to prove discriminatory harassment. Previously, employees were required to show that the complained-of harassment was so "severe and pervasive" as to alter the conditions of employment. For claims arising after October 11, 2019, however, employees must only show that an employer subjected them to "inferior terms, conditions or privileges of employment because of the individual's membership in one or more [] protected categories." This standard aligns with the standard for evaluating harassment claims under the liberal NYCHRL, under which employees may establish discriminatory harassment by showing that they were "treated less well" than other employees by virtue of their membership in a protected category.

Faragher-Ellerth Defense Eliminated

Effective Date: October 11, 2019

S.6577 eliminates employers' ability to use the so-called Faragher-Ellerth affirmative defense established in the United States Supreme Court's decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) against NYSHRL claims. The Faragher-Ellerth defense permits employers to avoid liability for discrimination or harassment by demonstrating that: (i) the employer exercised reasonable care to prevent and correct harassment in the workplace, and (ii) the complainant unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided or to avoid harm otherwise. The statutory elimination of this defense further aligns the NYSHRL with the NYCHRL, as the New York Court of Appeals rejected the applicability of Faragher-Ellerth defense to NYCHRL claims in 2010.

Prevailing Plaintiffs May Recover Punitive Damages and Attorneys' Fees

Effective Date: October 11, 2019

S.6577 amends the NYSHRL to allow prevailing plaintiffs in a court action, along with prevailing complainants before the New York State Division of Human Rights, to recover both punitive damages and attorneys' fees in connection with a claim of unlawful discrimination under the statute. The standard for establishing punitive damages under the NYSHRL has yet to be established by reviewing courts in light of the recent change in the law. However, under the NYCHRL, punitive damages may be awarded upon a finding that an employer has engaged in discrimination with "willful or wanton negligence, or recklessness, or where there is a 'conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.'"

Unlawful Discrimination Against Non-Employee Service Providers Prohibited

Effective Date: October 11, 2019

In April 2018, the New York legislature expanded the scope of the NYSHRL to protect non-employee service providers, including independent contractors, vendors and consultants, against sexual harassment. S.6577 further expands the NYSHRL to protect non-employee service providers against all unlawful discrimination.

All Employers Subject to NYSHRL Regardless of Size

Effective Date: February 8, 2020

The NYSHRL previously only applied to New York employers with four or more employees. However, as of February 8, 2020, the law will apply to all New York employers, regardless of size.

Statute of Limitations to Bring Sexual Harassment Claims Before New York State Division of Human Rights Extended

Effective Date: August 12, 2020

Prior to S.6577's enactment, complainants had one year to bring sexual harassment claims before the New York State Division of Human Rights ("NYSDHR"). S.6577 extends this statute of limitations to three years, the same statute of limitations for bringing NYSHRL sexual harassment claims in court. Other discrimination and harassment claims remain subject to the one-year statute of limitations.

Employers should understand and be prepared for the significant changes to the NYSHRL enacted by S.6577 and ensure compliance by all relevant deadlines. We will continue to monitor the impact of this legislation and provide additional information as it becomes available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
15 Nov 2019, Conference, Chicago, United States

Value-Based Contracting: Will It Blow Up Fee-for-Service?

19 Nov 2019, Panel, New York, United States

We have assembled a panel of experts and prepared a simulation of a series of common crises facing retail and fashion companies today, including cybersecurity and privacy issues and retail advertising and marketing issues.

19 Nov 2019, Webinar, Los Angeles, United States

Advertising has changed a great deal in recent years, and brands are facing mounting pressure to look for creative and innovative ways to resonate with their consumers.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions