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Over the past few months, New York Governor Andrew M. Cuomo signed into law two bills bringing increased protection against sexual harassment and racial discrimination.

Governor Cuomo signed bill S.6209A/A.7797A (Race Bill) on July 12, 2019 and it took effect immediately. The Race Bill amends both the New York Human Rights Law (Human Rights Law) and the Dignity for All Students Act, by broadening the definition of “race” in both statutes to include hair texture and protective hairstyles.

Just weeks later, Governor Cuomo signed bill S.06577 (Sexual Harassment Bill) to amend the Human Rights Law, the New York General Obligations Law, the New York Civil Practice Law & Rules, and the New York Labor Law in order to further combat sexual harassment in the workplace. The Sexual Harassment Bill will take effect in three phases. The first phase eliminating the “severe and pervasive” standard (defined below) to take effect 60 days after it was signed.

Race Bill

The Race Bill amends Section 292 of the Human Rights Law by adding two new Subdivisions 37 and 38 to read as follows:

  • The term “race” shall, for purposes of this article include traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.
  • The term “protective hairstyles” shall include, but not be limited to, such hairstyles as braids, locks, and twists.

New York becomes the second state to implement a law preventing racial discrimination based on hairstyles, just weeks after California signed into law the CROWN Act, an acronym meaning “Create a Respectful and Open Workplace for Natural Hair.” New Jersey currently has a bill modeled on California’s statute pending before lawmakers as well. Governor Cuomo emphasized the importance of the Race Bill by saying, “For much of our nation’s history, people of color – particularly women – have been marginalized and discriminated against simply because of their hair style or texture. By signing this [Race Bill] into law, we are taking an important step toward correcting that history and ensuring people of color are protected from all forms of discrimination.”

Sexual Harassment Bill

The Sexual Harassment Bill enacts the following key changes:

  • It prohibits non-disclosure agreements related to the underlying facts and circumstances of a discrimination claim (unless the complainant requests confidentiality, in which case the complainant has 21 days to consider the provision and seven days to revoke it).
  • It prohibits any agreements entered into after January 1, 2020 that would prevent the future disclosure of information related to a future claim of discrimination unless provision notifies the employee or potential employee that it does not prohibit him or her 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.
  • It prohibits mandatory arbitration clauses related to discrimination and harassment claims.1
  • It requires employers to provide employees notice of their sexual harassment prevention policy in writing in both English and in an employees’ primary language.
  • It extends the statute of limitations for claims resulting from unlawful or discriminatory practices constituting sexual harassment from one year to three years.
  • It eliminates any requirement that an individual first make a complaint about the harassment to their employer, licensing agency, employment agency or labor organization.
  • It eliminates a restriction requiring that harassment be “severe or pervasive” to make it to court, and allows sexual harassment victims to bring claims stemming from any conduct that exceeds “petty slights or trivial inconveniences.”

These developments in New York signify the recent trend of state legislatures starting to take a more proactive look at discrimination and harassment in general, looking beyond the actual event of discrimination by addressing how the discrimination occurred. Particularly, the recent legislation highlights New York’s commitment to address the ongoing spotlight of sexual harassment in the workplace and serves as another step in the advancement of women’s rights.

Employers with a dress code policy should review it to ensure that it complies with the Race Bill. For example, employers who implement a policy that doesn’t ban certain hairstyles, but requires that an employee’s hairstyle not exceed a certain length or maintain a “professional” appearance, should remain cognizant of how those policies are enforced.

Lastly, employers should review everything that might be impacted by the new mandates, including mandatory arbitration provisions, non-disclosure provisions, and harassment training documents and procedures. Additionally, employers should be on high alert that even if harassment victims don’t complain about how they were treated, employers can now still be held liable.

  1. There is an argument that the Federal Arbitration Act preempts this provision.