On March 1, 2022, the New York State Senate passed sweeping legislation to strengthen employee protections against workplace sexual harassment in the form of seven new bills, and on March 16, 2022, New York Governor Kathy Hochul signed into law three of those bills, discussed below. This package of legislation comes on the heels of a report from the New York State Attorney General's office concluding that New York's former governor Andrew Cuomo engaged in sexual harassment of several female employees, which ultimately led to his resignation.

The bills that were signed into law on March 16 will: (1) create a workplace sexual harassment hotline; (2) expand the coverage of the New York State Human Rights Law to include certain public sector employers; and (3) provide expanded protection to employees from unlawful retaliation.

Hotline for Sexual Harassment Complaints

The Workplace Sexual Harassment Hotline law (S.812B/A.2035B) establishes a toll-free confidential hotline for complainants of workplace sexual harassment, staffed by volunteer lawyers and maintained by the New York State Division of Human Rights, to apprise individuals of their legal rights and advise them on the specifics of their cases. The law will take effect in 120 days after March 16, 2022. This law may lead to more employees "lawyering up" before meeting with management to discuss workplace concerns.

State Employers Now Liable for Sexual Harassment Under New York State Human Rights Law

The Extending Human Rights to All Employees law (S.3395/A.2483B) takes effect immediately. The new law clarifies that the definition of "employer," under the New York State Human Rights Law (NYSHRL), includes the State and its subdivisions, and encompasses the personal staff of elected officials and judges as state employees. This law closes a loophole that previously prevented personal staff of elected officials and appointed judges from being held liable for sexual harassment as an employer. Now, for purposes of NYSHRL coverage, the "state" is considered the direct "employer" of elected and appointed officials and their staff. This provision also applies to localities in New York (i.e., cities, towns, villages, etc.).

Broader Anti-Retaliation Protections

The third Senate bill (S.5870/A7101) signed into law by Governor Hochul, and taking effect immediately, is entitled "Recourse to Victims of Unlawful Retaliation." The new law makes it a violation of New York State's Human Rights Law for employers to release personnel information of employees as a retaliatory action. The law protects employees who complain of, or assist in proceedings involving, unlawful discriminatory practices by employers. The New York State Attorney General is also given the power to commence an action in court, if she believes that an employer has violated or is about to violate this law. The law was enacted in response to allegations that former Governor Cuomo's allies leaked personnel records of a State employee to the press in retaliation for her accusations of sexual harassment against Governor Cuomo.

In addition, Governor Hochul plans to address sexual harassment as part of a wider Equity Agenda, which includes the creation of a Council on Gender Equity, implementing "measures to protect access to reproductive health services, including abortion care and prenatal and postnatal care, increased support for minority and women-owned businesses (MWBEs), investments in child care access, and a plan to bring free child care to every SUNY [State University of New York] campus." The Governor is also asking the legislature to amend the New York Constitution to enact the Equal Rights Amendment.

Proposed Sexual Harassment Legislation

Four additional bills have passed the New York State Senate but have not yet been voted on by the New York State Assembly or delivered to the Governor's desk for signature. These bills include provisions to:

  1. Ban "no-rehire" clauses in settlement agreements, which bar complainants or plaintiffs from re-applying to an employer or a related entity after receiving a settlement. (S.766) Such clauses have previously been used in settlement agreements to guard against allegations of retaliation by former employees who, having settled a claim against that employer, later re-apply for employment and the employer decides not to rehire them.
  2. Extend the statute of limitations for workers to file a workplace discrimination or harassment complaint with the New York State Division of Human Rights (NYSDHR), from one to three years. (S.566A) This would apply to complaints other than sexual harassment, which already has a three-year statute of limitations for filing with the NYSDHR.
  3. Extend the statute of limitations for workers to file lawsuits alleging workplace harassment and discrimination, from three to six years. (S.849A) Individuals already have up to three years to file a lawsuit in court alleging violations of the NYSHRL. If enacted into law, this bill could create significant challenges for employers. Even with the current three-year statute of limitations to bring NYSHRL claims of unlawful discrimination in court, employers can have difficulties maintaining contact with witnesses who are former employees, and locating documents and other evidence to defend against claims that arise during the limitations period. The proposed six-year statute of limitations to bring an action would make it even more challenging for witnesses' memories to stay fresh regarding the events and would make it more burdensome for employers to maintain personnel records and other key evidence needed to defend against NYSHRL claims. These challenges are often further exacerbated by the substantial time it takes for such a case to go to trial.
  4. Implement the Let Survivors Speak Act (S.738), an amendment to New York's General Obligations Law, which would prohibit agreements to settle discrimination, harassment or retaliation claims, including sexual harassment, from requiring a complainant (including an independent contractor) to: (a) forfeit any portion of a settlement or pay an employer liquidated damages for violating a nondisclosure or non-disparagement provision in such an agreement; or (b) state, assert, or disclaim that the complainant was not subject to unlawful discrimination, harassment, or retaliation. Such a change in the law would effectively gut the enforceability of any nondisclosure or non-disparagement provisions which are often a significant aspect of consideration for an employer to enter into a settlement agreement.

What Should Employers Do Now?

Employers should consider training their managers on employers' legal obligations with respect to preventing claims of unlawful discrimination and harassment and the specific obligations under the newly passed laws. Employers should also ensure they are training employees on their legal rights so that employers can address any issues internally before an employee considers calling an external hotline. In addition, employers should consider reviewing their harassment prevention policies.

With respect to the bills that are still pending in the New York State Legislature, employers should confer with employment counsel as further developments occur. Schnader will continue to monitor this legislation.

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.