New York State Significantly Expands its Workplace Harassment Laws (Again)

From JDSupra, Emily Haigh and Devjani Mishra report on changes to New York’s harassment laws which strengthened the law and made it more broadly applicable to independent contractors. Emily and Deviani write:

New York Employers May be Held Liable for Discrimination of any Kind Against a Contractor. New York State expanded its sexual harassment protections last year to include contractors. The law is again expanding, this time to protect contractors from other types of workplace discrimination and retaliation: “[a]n employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.” This change goes into effect 60 days after enactment for claims filed on or after that date.
Punitive Damages Will be Available. Punitive damages will become available as a remedy in discrimination, harassment and retaliation lawsuits under state law. This change goes into effect 60 days after enactment for claims filed on or after that date.
Attorney Fees “Shall” be Awarded to the Prevailing Party. New York Human Rights Law now provides that a prevailing party (whether before a court or the Division of Human Rights) “shall” be awarded attorneys’ fees, rather than the award being discretionary. If a prevailing employer seeks attorneys’ fees, it must first show that the action brought by the plaintiff was frivolous (i.e., that it was filed or continued in bad faith as defined in the statute). This change goes into effect immediately upon enactment.
The Laws Shall be Construed Liberally to Maximize Deterrence. Going forward, the state law is to be construed liberally and exceptions to the law construed narrowly in order to “maximize deterrence of discriminatory conduct,” even where this approach may diverge from comparable federal law. This change goes into effect immediately for claims filed after enactment.
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Employment Contract NDAs Must Include a Carve-Out.Beginning on January 1, 2020, NDAs that are part of an employment contract must include an explicit carve-out providing that the employee or future employee is not prohibited 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.”