A hostile workplace is now easier to prove across New York State. New York’s Human Rights Law was amended last year. A common misperception is that only sex or gender discrimination constitute hostile workplaces. Another one is that nasty or unpleasant work environments are always hostile. Not true. Any protected class or classes of employees may be subjected to hostile workplaces. It all depends on the specific facts of an employee’s particular workplace.

The U.S. Supreme Court tells us that Title VII of the Civil Rights Act is not a general civility code. Employers don’t have to be nice to employees.

However, all types of “class protected” harassment are prohibited in New York.

The most frequently cited ones include:

  • Race discrimination which sometimes includes national origin
  • Sex or gender or sexual identity discrimination
  • Disability or perceived disability discrimination

Associational discrimination can also occur when an employee associated with a discriminated person is also discriminated because of their association with the discriminated employee.

On August 12, 2020 sexually harassed employees will have up to 3 years to file such claims with New York’s Division of Human Rights instead of the current 1 year to do so.

Because of sex is not the only type of possible hostile workplace.

Other less frequently filed employment discrimination charges or complaints, expanded by the New York State and New York City Human Rights Laws, include:

  • Religion or creed
  • Age – shall not be a factor at all in New York State; shall not be a factor for those over 40 under federal law
  • National origin
  • Sexual orientation
  • Gender identity or expression
  • Military status
  • Predisposing genetic characteristics
  • Familial status
  • Marital status
  • Domestic violence victim status

In 2019 New York made substantial changes to the Executive Law also known as the New York State Human Rights Law. That law is more expansive than the federal laws. It became easier to prove workplace harassment across New York State. My YouTube video, linked below on Employment Law Reality Check, highlights a few of those changes.

Buffalo, Rochester, and Lake Placid are covered by New York’s enhanced Executive Law, enforceable statewide, making it easier for employees to prove a hostile workplace.

Some of the other changes to New York’s Human Rights Law include:

  • Elimination of the severe or pervasive requirement unless an employer shows the actions to be “petty slights or trivial inconveniences” which are not actionable
  • No longer necessary for employees to identify some “similarly situated person/employee” who was treated more favorably
  • Unnecessary for employees to complain to employers or to file grievances placing employers on notice
  • Non-employees are now protected from workplace discrimination AND the NYS Human Rights Law now applies to all sizes of employers and not just those with 4 or more employees
  • Punitive damages are now available but only against private employers
  • All employment cases may have attorney’s fees awarded
  • Nondisclosure agreement in all employment discrimination cases can only exist if the complainant or employee prefers same

The above were welcomed by the employees’ or plaintiffs’ bars. They should make proving discrimination claims under state law easier than under the old law.

Employees must keep in mind that under state law, complaints must still be filed within 1 year of an adverse employment action. For employment sexual harassment claims that time period will be extended to 3 years on August 12, 2020.

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