This is the second in a series of blog posts concerning a suite of legislation passed last week by New York State legislators. Yesterday, we discussed a Bill that will change how nondisclosure provisions are used in the context of settlement and separation agreements. Today, we look at a series of measures that will change how harassment claims are litigated in New York State (although many of these changes should already be familiar to New York City employers).

Perhaps most notably, the new laws lower the standard for proving claims of workplace harassment under New York State’s anti-discrimination law. Currently, under both federal and New York State law, an employee-plaintiff alleging harassment must establish that the conduct at issue was “severe or pervasive.” Without this showing, the employee cannot succeed in proving their claim of harassment.

Under the new law, however, harassment will be deemed unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” In other words, New York State will no longer recognize the longstanding “severe or pervasive” standard. As a slight consolation to the business community, the new laws do provide an affirmative defense to harassment claims if the employer can show 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.” These changes align New York State law with New York City law, which eliminated the “severe or pervasive” standard and adopted the “petty slights or trivial inconveniences” affirmative defense years ago.
Continue Reading New York Lawmakers Upend the Employment Law Landscape…Again (Part 2)