By Tricia Sherno

Law360 (December 14, 2020, 12:07 PM EST )

Tricia Sherno

This article[1] discusses the most significant workplace discrimination, harassment and retaliation laws affecting employers with workers in New York City and provides employer best practices for compliance.

Workplace Discrimination, Harassment and Retaliation

In addition to federal anti-discrimination laws, including Title VII of the Civil Rights Act, employers in New York City must consider whether they are covered by the two most significant state and local anti-discrimination laws:

• The New York State Human Rights Law, or NYSHRL; and
• The New York City Human Rights Law, or NYCHRL.

These laws prohibit discrimination and harassment based on the legally protected characteristics, and their application is significantly broader than Title VII.[2]

The key provisions of the NYCHRL are discussed below.[3]

Broad Application and Reach of the NYCHRL

The NYCHRL protects employees, applicants, interns, independent contractors and freelancers of covered employers from discrimination and harassment in employment based on their membership in a statutorily protected class. The NYCHRL prohibits retaliation.

The NYCHRL is construed much more broadly than Title VII. Until certain amendments to the NYSHRL were adopted in October 2019, the NYCHRL was also construed more broadly than the NYSHRL. In 2005, the New York City Council enacted the Local Civil Rights Restoration Act, which, among other things, instructed courts that the NYCHRL's provisions must be construed liberally for the accomplishment of its uniquely broad and remedial purposes.[4]

The key ways in which the NYCHRL has a broad application and reach are discussed below.

The NYCHRL applies to employers with four or more employees,[5] and its prohibition on sexual harassment applies to all employers, regardless of size.[6]

The law protects a number of personal characteristics not covered under state or federal law, including caregiver status; sexual and reproductive health decisions; status as a victim of domestic violence, sex offenses or stalking; unemployment status; consumer credit history; and salary history.[7] Additionally, the protections based on age have no age limitation.[8]

The NYCHRL — as well as the NYSHRL as of Jan. 11 — protect applicants, employees, independent contractors and other gig workers from discrimination, harassment and retaliation.[9]

Under the NYCHRL, to establish a hostile work environment claim, the burden on an employee is to prove by a preponderance of the evidence that the employee has been treated less well than other employees because of the employee's protected status.[10] Unlike under Title VII, there is no requirement that harassment be severe or pervasive to be actionable.

The NYCHRL provides strict vicarious liability on employers for the unlawful harassment of a supervisor, whether or not the employer was aware of the supervisor's conduct. The so-called Faragher-Ellerth affirmative defense to supervisor liability is not available under the NYCHRL.[11] An individual may be personally liable under the NYCHRL if the individual (1) has an ownership interest in the employer, (2) exercises control over personnel decisions, or (3) aided and abetted the discriminatory conduct.[12]

The standard for establishing proof of retaliation under the NYCHRL is extremely liberal. To prevail, a plaintiff must show that the plaintiff took an action opposing the employer's discrimination and that, as a result, the employer engaged in conduct that was reasonably likely to deter the plaintiff from engaging in such activity.[13]

Aggrieved individuals may file a private civil cause of action for damages in a court of competent jurisdiction for alleged violations of the NYCHRL without first filing a complaint with the New York City Commission on Human Rights or the New York State Division of Human Rights.[14]

Damages, Fines and Other Penalties

Similarly, the potential damages, fines and other penalties for violations of the NYCHRL can be significant, and there is no cap on recoverable damages.[15]

In claims administered by the New York City Commission on Human Rights, the commission may order:

• The hiring, reinstatement or promotion of an employee;
• The award of back pay and front pay;
• Admission to, or participation in, a training program; or
• Compensatory damages.[16]

Compensatory Damages

Compensatory damages under the NYCHRL include damages for:

• Emotional pain;
• Suffering;
• Inconvenience;
• Mental anguish;
• Loss of enjoyment of life; and
• Other nonpecuniary losses.[17]

Punitive Damages

Punitive damages are recoverable in a civil action brought under the NYCHRL, and there is no cap. The standard for recovering punitive damages under the NYCHRL is different and less difficult to satisfy than the standard under Title VII.

Specifically, "the standard for determining damages under the NYCHRL is whether the wrongdoer has engaged in discrimination with willful or wanton negligence, or recklessness, or a 'conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.'"[18]

Attorney Fees, Expert Fees and Cost of Claims

The prevailing party in proceedings in the commission may be awarded costs and reasonable attorney fees, expert fees and other costs for claims.[19]

Private Right of Action

In a private right of action under the NYCHRL, a court may award the prevailing party costs and reasonable attorney fees.[20]

Civil Penalties

The commission may impose a civil penalty of up to $125,000 against a person who has engaged in a discriminatory practice under the NYCHRL. When the discriminatory practice was a result of the person's willful, wanton or malicious conduct, the commission may impose a penalty of up to $250,000.[21]

Sexual Harassment Under NYCHRL

The NYCHRL protects employees, interns, independent contractors and gig workers who experience discriminatory sexual harassment. The NYCHRL's prohibition on sexual harassment applies to all employers, regardless of size.[22]

Establishing a Hostile Work Environment

Consistent with the NYCHRL's broad application and liberal construction, the standard for establishing a hostile work environment claim based on sexual harassment is whether a plaintiff has proven by a preponderance of the evidence that the plaintiff has been treated less well than other employees because of a protected status.[23]

NYCHRL Precludes the Faragher-Ellerth Defense

The NYCHRL precludes the Faragher-Ellerth defense in sexual harassment claims.[24] Instead, an employer can avoid liability under the NYCHRL by establishing that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider a "petty slight or trivial inconvenience."[25]

Strategies for Defending and Avoiding NYCHRL Sexual Harassment Claims

Employers who are in the position of defending claims of sexual harassment under the NYCHRL should consider the following when assessing the merits of the claim and possible defenses:

• See if there are any procedural defects, including failure to file within the applicable three-year statute of limitations period.[26]
  
  
• See whether the employer can establish as an affirmative defense that the conduct complained of consists of nothing more than what a reasonable victim of harassment would deem petty slights or trivial inconveniences.[27]
  
  
• Investigate the truth and substance of the allegations. Consider the veracity of the allegations and whether the plaintiff is likely to prove by a preponderance of the evidence that the plaintiff has been treated less well than other employees because of a legally protected status.[28]

Employers that are faced with NYCHRL claims may wish to consider settling the claims early in the litigation process to avoid the burden and costs of discovery, particularly when the available defenses are absent or weak.[29]

The liberal standards for sexual harassment claims under the NYCHRL underscore the need for employers to prevent such claims in the first case. Employers should consider taking the following proactive steps:

• Comply with the Stop Sexual Harassment in NYC Act by adhering to all posting, policy and training requirements. See the subsection below that explains how to comply with the NYCHLR's anti-sexual harassment posting and training requirements.
  
  
• Consider adopting a romantic relationship policy that bars romantic or sexual relationships between supervisors and subordinates and requires prompt reporting of such relationships.[30]
  
  
• Promptly and thoroughly investigate all complaints of sexual harassment and maintain a record of actions taken in response to a complaint.[31]
  
  
• Take appropriate disciplinary action against any employee who has engaged in conduct that constitutes sexual harassment.[32]
  
  
• Encourage a speak-up culture by setting a tone from the top and reinforcing the message in policies and training.
  
  
• Consider offering a severance payment in exchange for a release of claims if a complainant resigns from employment.[33]

#MeToo Movement

In the wake of the #MeToo movement, New York City adopted the Stop Sexual Harassment in NYC Act, which requires:

• All employers to post a notice of anti-sexual harassment rights and responsibilities; and
  
  
• Employers with 15 or more employees to conduct sexual harassment prevention trainings annually.[34]

Steps for Complying With NYCHRL's Anti-Sexual Harassment Posting and Training Requirements

To comply with the Stop Sexual Harassment in NYC Act, employers must:

• Post the anti-sexual harassment rights and responsibilities notice[35] designed by the New York City Commission on Human Rights in both English and Spanish in employee breakrooms or other areas where employees gather.[36] Employers should also display it in other languages as may be warranted based on the languages spoken in the workplace.[37]
  
  
• Distribute an information sheet on sexual harassment[38] developed by the human rights commission to employees at the time of hiring. Employers may include this information sheet in the employee handbook.[39]
  
  
• Provide annual anti-sexual harassment interactive training to all employees, including supervisory or managerial employees, interns, independent contractors and freelancers if you're a private business that employs 15 or more employees.[40]
  
  
• Train new employees within 90 days of the initial hire if you're a private business that employs 15 or more employees.
  
  
• Maintain records of sexual harassment training completion for three years.[41]
  
  
• Develop a thorough sexual harassment policy consistent with both the NYCHRL and NYSHRL requirements.[42]

NYCHRL's Coverage of COVID-19-Related Discrimination

New York City has not amended the NYCHRL to respond to the COVID-19 pandemic. However, existing provisions of the NYCHRL afford protections to certain individuals who may be experiencing discrimination related to COVID-19 on the basis of:

• Disability;
• Perceived race;
• National origin; or
• Any other applicable protected status.

In recent guidance,[43] the New York City Commission on Human Rights stated that it "considers actual or perceived infection with COVID-19 to be protected as a disability under the [NYCHRL]." Additionally, the commission's guidance states:

It is also illegal for an employer to harass or discriminate against an employee based on the presumption that they have contracted or are more likely to contract COVID-19 due to actual or perceived race, national origin, disability, or another protected status.[44]

Reasonable Accommodations Under NYCHRL

Individuals may be entitled to reasonable accommodations for the following purposes under the NYCHRL:

• Religious observance;
• Disability;
• Pregnancy, childbirth or a related medical condition; or
• Needs as a victim of domestic violence, sex offenses or stalking.[45]

Under the NYCHRL, a "reasonable accommodation" is defined as such accommodation that will not cause undue hardship in the conduct of the employer's business.[46]

Engage in a Cooperative Dialogue

In 2018, New York City amended the NYCHRL to require employers "to engage in a cooperative dialogue with persons who are or may be entitled to reasonable accommodations."[47] A cooperative dialogue, sometimes referred to as the interactive process, requires employers to

engage in good faith in a written or oral dialogue concerning [an employee's] accommodation needs; potential accommodations that may address [an employee's] accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for [employers].[48]

An employer that fails to timely engage in a cooperative dialogue with an employee who has requested a reasonable accommodation on any of the above bases — or an employee who the employer knows or should have known may require an accommodation — could be liable for an unlawful discriminatory practice under the NYCHRL.

If, after engaging in a cooperative dialogue with an employee, the employer determines that providing a reasonable accommodation would create undue hardship for the employer, then the employer is exempt from having to provide that reasonable accommodation.[49]

Employers have the burden of proving undue hardship and can attempt to do so by addressing factors such as, but not limited to:

• The cost and nature of the accommodation;
  
• The overall financial resources of the employer;
• The number of employees employed by the employer; and
• The impact of the accommodation upon the operation of the facility.[50]

The NYCHRL prohibits retaliation based on an individual's request for a reasonable accommodation.[51]

Steps for Complying With NYCHRL's Cooperative Dialogue Requirements

To comply with the NYCHRL's cooperative dialogue requirements, employers should:

• Adopt and make available to employees a policy that explains how employees can request reasonable accommodations.
  
  
• Consider assigning a small number of employees — e.g., in human resources or office administration — to handle requests for reasonable accommodations and the cooperative dialogue process to ensure a consistent approach.
  
  
• Train managers on how to respond if they received a request for an accommodation so that managers do not deny accommodations outright before first engaging in a cooperative dialogue.
  
  
• Always notify employees in writing of the decision to grant or deny an accommodation. Written notification of the determination is mandatory under NYC Administrative Code Section 8-107, subdivision 28(d),(e).
  
  
• Maintain written documentation of the cooperative dialogue process in confidential files, including (1) a description of the request; (2) any supporting documentation; (3) the timeline of the process; (4) the accommodations considered and the basis for the decision to grant or deny a request; and (5) a copy of all written notifications and communications with employees regarding the requested accommodation.[52]

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Tricia Bozyk Sherno is counsel at Debevoise & Plimpton LLP.

This article is excerpted from Practical Guidance, a comprehensive practice resource that includes practice notes, checklists, and model annotated forms drafted by experienced attorneys to help lawyers effectively and efficiently complete their daily tasks. For more information on Practical Guidance or to sign up for a free trial, please click here.

Law360 and Practical Guidance are both owned by LexisNexis Legal & Professional, a RELX Group company. 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] The full practice note, titled New York City Major Labor and Employment Issues and Employer Best Practices, contains the following additional topics:

• Pregnancy and Parental Rights
• Recruiting and Screening Issues
• Compensation and Wage and Hour Issues
• Predictive Scheduling – Fair Workweek Law
• Employee Leave, Sick, and Safe Time
• Independent Contractors and the Gig Economy
• New York City COVID-19 Laws Affecting Employers

[2] For analysis of the NYSHRL, see New York State Human Rights Law (NYSHRL).

[3] For additional information on discrimination, harassment, and retaliation under the NYCHRL, see New York City Human Rights Law (NYCHRL). For practical guidance on federal statutory protections against discrimination, see the Discrimination, Harassment, and Retaliation – EEO Laws and Protections landing page.

[4] See NYC Admin. Code § 8-130.

[5] NYC Admin. Code § 8-102.

[6] Id.

[7] NYC Admin. Code § 8-107.

[8] For a full list of protected classifications, see New York City Human Rights Law (NYCHRL).

[9] N.Y. Exec. Law § 296-d (effective October 11, 2020); NYC Admin. Code § 8-107, subd. 23 (effective Jan. 11, 2020).

[10] Williams v. New York City Housing Authority , 61 A.D.3d 62, 78 (1st Dep't 2009).

[11] See Faragher v. City of Boca Raton , 524 U.S. 775 (1998). See also Faragher-Ellerth Provision for Summary Judgment Brief and Harassment Claim Prevention and Defense.

[12] See Manning v. Healthfirst, LLC , 2006 NYC HRC LEXIS 1 (NYC HRC 2006); NYC Admin. Code § 8-107, subd. 6.

[13] NYC Admin. Code § 8-107(7); Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102 (2d Cir. 2013); Wolf v. Time Warner, Inc., 2013 U.S. App. LEXIS 25181 (2d Cir. Dec. 19, 2013).

[14] NYC Admin. Code § 8-502, subd. a.

[15] To compare available federal and New York State remedies, see Remedies under State Employment Anti-discrimination Laws Survey and Remedies Available under Key Federal Employment Anti-discrimination Laws Chart.

[16] NYC Admin. Code § 8-120.

[17] Caravantes v. Fifty-Third Street Partners, LLC , 2012 U.S. Dist. LEXIS 120182 (S.D.N.Y. Aug. 23, 2012).

[18] Chauca v. Abraham , 89 N.E.3d 475, 481 (N.Y. 2017) (quoting Home Ins. Co. v. Am. Home Prods. Corp. , 550 N.E.2d 930, 934 (N.Y. 1990)); See also Kolstad v. Am. Dental Ass'n , 527 U.S. 526, 529–30 (1999) (quoting 42 U.S.C. § 1981a(b)(1)).

[19] Intro. 818-A (on March 28, 2016).

[20] NYC Admin. Code § 8-502, subd. f.

[21] NYC Admin. Code § 8-126.

[22] NYC Admin. Code § 8-102.

[23] Williams v. New York City Hous. Auth. , 61 A.D.3d 62, 78–79 (N.Y. App. Div. 1st Dep't 2009).

[24] NYC Admin. Code § 8-107, subd. 13(b).

[25] Williams v. New York City Hous. Auth. , 61 A.D.3d 62, 80 (N.Y. App. Div. 1st Dep't 2009).

[26] NYC Admin. Code § 8-502(d).

[27] Williams v. New York City Hous. Auth. , 61 A.D.3d 62, 80 (N.Y. App. Div. 1st Dep't 2009).

[28] See Williams v. New York City Housing Authority , 61 A.D.3d 62, 78 (1st Dep't 2009).

[29] For an annotated settlement agreement, see Settlement Agreement and Release of Claims for Single-Plaintiff Employment Dispute (NY).

[30] For an annotated workplace romance policy, see Romance in the Workplace Policy (NY).

[31] For guidance on conducting internal and sexual harassment investigations, see Workplace Investigations: Step-by-Step Guidance, Sexual Harassment Investigation Questions, and Sexual Harassment Complaint Prevention and Response Checklist.

[32] See Disciplining Employees: Key Considerations.

[33] For an annotated severance agreement and release, see Separation Agreement (NY).

[34] See NYC Admin. Code § 8-107, subd. 29–30. For more information, see New York Human Rights Commission, Stop Sexual Harassment Act and Sexual Harassment Prevention Training Checklist (NY).

[35] https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Notice-8.5x11.pdf.

[36] NYC Admin. Code § 8-107, subd. 29(a).

[37] NYC Admin. Code § 8-107, subd. 29(d).

[38] https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Factsheet.pdf.

[39] NYC Admin. Code § 8-107, subd. 29(e).

[40] See NYC Admin. Code § 8-107, subd. 30(b), (d). See also Sexual and Other Workplace Harassment Guidance for Nonsupervisory Employees: Training Presentation (NY and NYC), Sexual and Other Workplace Harassment Guidance for Managers: Training Presentation (NY and NYC), and New York City Human Rights Commission, Protections for Independent Contractors & Freelancers from Discrimination and Harassment.

[41] See NYC Admin. Code § 8-107, subd. 30(c).

[42] For a sample New York anti-harassment policy, see Anti-harassment Policy (with Acknowledgment) (NY). For more information, see Sexual Harassment Prevention Training Checklist (New York City). For sexual harassment training presentations, see Sexual and Other Workplace Harassment Guidance for Managers: Training Presentation (NY and NYC) and Sexual and Other Workplace Harassment Guidance for Nonsupervisory Employees: Training Presentation (NY and NYC). For a state law survey on sexual harassment prevention training, see Sexual Harassment Prevention Training State Law Survey.

[43] https://www1.nyc.gov/site/cchr/media/covid19.page.

[44] For more guidance on a wide variety of COVID-19 legal issues, see Coronavirus (COVID-19) Resource Kit. For a resource kit focused on employees returning to work and broken up by key employment law topics, see Coronavirus (COVID-19) Resource Kit: Return to Work. For tracking of key federal, state, and local COVID-19-related Labor & Employment legal developments, see Coronavirus (COVID-19) Federal and State Employment Law Tracker. For COVID-19 workplace litigation trends, see COVID-19 Workplace Litigation Trends. Also see state and federal COVID-19 legislative, regulatory, and executive order updates from State Net, which are available here.

For more articles on COVID-19 and the workplace by Castle Publications, as published on Practical Guidance, see Returning to Work during and after COVID-19, CDC Guidance and the Return to Work during COVID-19, Wage and Hour Obligations for California Employers during COVID-19, Wage and Hour Obligations for New York Employers during COVID-19, and Leaves of Absence under Federal Law before and after the Families First Coronavirus Response Act (FFCRA).

[45] NYC Admin. Code § 8-107.

[46] NYC Admin. Code § 8-102. For a comparison of the federal Americans with Disabilities Act (ADA) with the NYSHRL and NYCHRL's provisions related to disabilities in the workplace, see Disability Comparison Chart for ADA, NYSHRL and NYCHRL (NY).

For information on reasonable accommodations under the ADA, see Americans with Disabilities Act: Guidance for Employers, Accommodating a Disability under the Americans with Disabilities Act Checklist, and 1 ADA: Employee Rights Chapter 6.syn— What Is a "Reasonable Accommodation."

[47] Int. No. 804-A.

[48] NYC Admin. Code § 8-102.

[49] NYC Admin. Code § 8-102.

[50] Id.

[51] NYC Admin. Code § 8-107(7).

[52] For additional information on disability accommodation under the NYCHRL, see New York City Human Rights Law (NYCHRL). See also NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability.

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