New York is the most progressive state in the nation in protecting workers against harassment, discrimination and retaliation.
In 2018 New York amended its human rights law protections against sexual harassment to cover independent contractors and other non-employees, as well as employees.
In 2019 New York further amended its human rights law protections against all types of unlawful harassment, discrimination and retaliation to cover independent contractors and other non-employees, as well as employees.
As explained in this Q & A, New York has made it much easier for all workers, whether employees or independent contractors and other non-employees, to make out a claim of harassment against any private employer, even an employer with only one employee or independent contractor.
Moreover, these claims can be brought not only against a worker’s own employer but also against any business that operates in the worker’s workplace or worksite.
Many fashion industry workers (models, stylists, artists, photographers etc.) are engaged by talent agencies and fashion companies as independent contractors or in their non-employee categories, rather than as employees. Before these changes in the law, these workers had little state law protections against harassment, discrimination and retaliation. They were very vulnerable, even more so when their unique work sites, working conditions and hours often blurred business and social norms.
Theoretically, these workers had independence and flexibility in deciding whether to take or refuse a job where harassment might occur. But for many this was an illusion. Talent agencies controlled access to client companies and both the agencies and the companies to which the workers were assigned could refuse to engage the independent contractor or other non-employee who took issue with their working conditions and claimed harassment. Without the legal protection to file a claim, these workers not only faced the loss of their current job, but also the potential loss of future opportunities and the steady work and income that these opportunities provided.
Harassment is a form of discrimination. In it most injurious form, unlawful harassment includes threats, intimidation, coercion or violence that interfere with a worker’s civil or constitutional rights, and which is motivated, at least in part, by that worker’s actual or perceived race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristic, familial status, marital status, domestic violence victim status or because the person has opposed unlawful practices.
Harassment in employment is particularly damaging, because it affects the worker’s personal sense of self-worth, safety and wellbeing as well as her or his livelihood and opportunities for growth, development and advancement at work.
The NYS Division of Human Rights’ (NYSDHR) guidance defines quid pro quo harassment as a person in authority who “tries to trade job benefits for sexual favors. This can include hiring, promotion, continued employment or any other terms, conditions or privileges of employment.” The Division defines “hostile environment” sexual harassment as “words, signs, jokes, pranks, intimidation or physical violence which are of a sexual nature, or which are directed at a person because of that person’s sex” or “any unwanted verbal or physical advances, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace which are offensive or objectionable to a person, which cause the recipient discomfort or humiliation, or which interfere with the person’s job performance.”
As a practical matter, hostile environment sexual harassment covers three types of behavior: predator, taunting, and patronizing. Predator behavior coerces or threatens a person with uninvited or unwelcome sexual advances. Taunting behavior offends a person’s sensibilities with comments or actions of a sexual nature or invasion of the person’s personal space. Patronizing behavior intimidates a person with condescending put-downs, dismissiveness, isolation and exclusion.
Sex harassment also includes harassment because of a person’s sexual orientation and gender identity and expression.
Bullying is statements and actions that are abusive, persistent and targeted at one or more workers. Whether verbal or physical, bullying can be a form of unlawful harassment if it is based, in whole or in part, on a worker’s legally protected category. Bullying can occur in one of three ways:
by intimidation -- fear-inducing communication and behavior, such as yelling, attempting to shame or humiliate, using a harsh tone of voice, looking sullenly, using derisive names, teasing, making a worker the butt of jokes, spreading false rumors, spying, using profanity, threatening, invading a worker’s space, hovering over, or physically shoving or pushing the worker;
by isolation/exclusion --- making a worker feel socially or physically isolated or invisible, adopting an air of superiority and acting condescendingly, disrespecting the worker, purposefully ignoring or avoiding the worker, excluding the worker from conversation and work-related events, or encouraging others to turn away from the worker; and
by undermining the worker’s work -- denying the worker resources, deliberately delaying or blocking the worker’s progress on a project, unfair, arduous, or last-minute assignments, promising an assignment and then giving it to another, taking credit for a worker’s work, sabotaging a worker’s work or falsely accusing the worker of errors or insubordination.
Effective April 12, 2018, New York expanded its coverage against sexual harassment to cover independent contractors, subcontractors, consultants, and each of their employees, any other person providing services pursuant to a contract in the workspace, such as equipment repair and cleaning, and “non-employee” designations, such as “gig” worker, temp, or intern, paid or unpaid. All of these designations are protected against sexual harassment, the same as employees.
Effective September 12, 2019, New York expanded its independent contractor and non-employee harassment protections to include harassment, discrimination and retaliation based on any protected category, including age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, actual or perceived disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.
Effective February 8. 2020, a worker can file a harassment, discrimination and retaliation claim with the NYS Division of Human Rights on any protected category basis against any private employer, even if that employer has only one employee or independent contractor or non-employee working for them.
As of October 11, 2019, the threshold requirement for a harassment claim under the NYSHRL was lowered to allow a worker to make out a harassment claim if another’s conduct in the workplace subjected them to “inferior terms, conditions or privileges of employment” based on the worker’s protected category. This has been interpreted to mean that a worker can bring a harassment claim if the worker was treated “less well” than workers outside their protected category. Workers were no longer required to claim or prove, as they were before October 11, 2019, that the harassment was “severe or pervasive.”
Under this new threshold requirement, harassment against a worker is unlawful unless it amounts to no more than “petty slights” or “trivial inconveniences” to a reasonable victim.
As of October 11, 2019, a worker no longer needs to allege that a “comparator”, that is, someone outside their protected category, was treated better.
As of October 11, 2019, a worker no longer needs to file a complaint internally with their employer or take advantage of other preventive or corrective opportunities provided by their employer.
As of October 11, 2019, a worker can recover reasonable attorney fees from an employer if the worker prevails on their harassment claim, in addition, the worker can receive compensatory (emotional injury) damages and punitive damages. NYS may also impose fines on an employer.
As of October 11, 2019, a worker cannot be bound by any agreement signed after that date that prohibits the worker from disclosing harassment facts or settlement of a claim of harassment on any protected category basis unless that is the worker’s preference. If so, a three step process must be followed: (i) the nondisclosure term or condition must be written in plain English and, if applicable, the worker’s primary language as well; (ii) the worker must be given at least 21 days to consider the non-disclosure term and 7 days after the worker signs to revoke their signature and consent; and (iii) after the expiration of the revocation period, the parties must enter into an agreement that includes the nondisclosure term and any other terms resolving the worker’s harassment claim.
Practically, this means that if a worker prefers to include the non-disclosure term, the parties must enter into two separate documents: (i) one document that memorializes the worker’s preference to include the non-disclosure term; and (ii) a subsequent document that includes the nondisclosure term as part of the resolution of the worker’s harassment claim.
As of October 11, 2019, no agreement can prevent a worker from initiating, testifying, assisting or complying with a subpoena or participating in any manner with a government agency’s investigation, or filing or disclosing any facts necessary for an unemployment insurance, Medicaid, or other government benefits claim.
As of October 11, 2019, a worker can challenge mandatory arbitration of a harassment or discrimination claim as contrary to state law and subject to greater scrutiny by the courts.
As of January 1, 2020, no agreement entered into between an employee or potential employee and an employer or agent of the employer can prevent the disclosure of factual information related to any future claim of discrimination, unless it notifies the employee that the agreement does not prohibit the employee from speaking with law enforcement, the discrimination agencies, or an attorney retained by the employee or potential employee.
As of October 11, 2019, all private New York employers, regardless of number of employees, were required to provide all employees, regardless of how long they are scheduled to work in New York, including interns, paid or unpaid, and management with a notice containing the employer’s harassment prevention policy and an interactive sexual harassment prevention training program. New employees must be trained within 30 calendar days of starting their job. Training must be in an employee’s primary language if the State has translated model training in the employee’s language. All employees, regardless of immigration status must receive training, and sexual harassment training must be given at least once per year.
New York State recommends but does not require that the notice and training be given to independent contractors and their employees. (Note: Under New York City’s Human Rights Law, both employees and independent contractors must be provided an interactive sexual harassment prevention training program. New York City also requires training in “bystander intervention.”)
For unlawful harassment committed anywhere in the U.S., an employee can file a claim with the federal Equal Employment Opportunity Commission.>
For unlawful harassment committed by a New York employer anywhere in or outside New York State, if impacting New York State, a worker can file a claim with the NYS State Division of Human Rights or bring an action in NYS Supreme Court.>
For unlawful harassment committed in New York City by a New York City employer, a worker can file a claim with the NYC Commission on Human Rights.>
If harassment involves uninvited or unwelcome physical touching, coerced physical confinement or coerced sex acts, the harassment may constitute a crime. Workers should contact their local police department.
As of September 18, 2019, New York State extended to 20 years (four times as long as the former statutory limit) the time to file rape in the second degree and charges of criminal sexual acts in the second degree and to 10 years the time to file rape in the third degree and charges of criminal sexual act in the third degree. Rape in the first degree has no statute of limitations.