New York continues to be in the vanguard with respect to amending its anti-discrimination laws to expand employee rights and remedies. This post addresses the most recent newly adopted amendments, but it appears more significant amendments are imminent. We will advise as the law continues to be amended.
One notable amendment provides further protection for persons filing complaints of discrimination and harassment. The law now defines retaliation as including adverse action against an individual for "disclosing an employee's personnel file because he or she has opposed any practices forbidden under [the New York State Human Rights Law] or because he or she has filed a complaint, testified or assisted in any proceeding." This amendment is effective immediately. It does not prohibit disclosures required for legal proceedings. The takeaway is simple: Employers should refrain from disclosing employee personnel files in response to any protected activity by the employee. Employers who violate this rule will find that they have given a gift to the employee, who now has a simple-to-prove retaliation claim even if his or her discrimination claim is potentially defensible.
Another amendment directs the New York State Division of Human Rights, which enforces the Human Rights Law, to establish a confidential hotline for individuals to make complaints about workplace sexual harassment. The hotline is to be staffed with pro bono attorneys. Interestingly, the legislation states that the pro bono attorneys staffing the hotline may not solicit further representation of any individuals they advise, which may well diminish the number of attorneys volunteering for this duty. Once the hotline is operational, employers will need to add information about the hotline to employee notices about their rights under the Human Rights Law. The hotline is to be in place by July 14, 2022.
Additionally, the New York Attorney General now has the authority to sue employers for retaliation. Remarkably, the Attorney General can bring such a claim even if the employee has already settled with the employer.
Pursuant to yet another recent amendment, domestic workers are now covered by the Human Rights Law. The law remains inapplicable to persons employed by their own parents, spouse, or child. Previously, the law provided protection against harassment, but not discrimination, for domestic workers.
Finally, the Human Rights Law has been amended to clarify the scope of claims against the State of New York and local government entities as an employer. The state and local entities are deemed the employer of any employee of the executive, legislative, or judicial branches, including judges.
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