Lawyer Monthly Magazine - September 2019 Edition

an employer to avoid potential liability if they provide an avenue to complain and an employee “unreasonably” fails to do so. Before these changes, employees bringing claims under only Title VII and the NYSHRL, who failed to complain about harassment and discrimination, ran the risk of having no recourse. In essence, the onus was previously placed on the employee to complain, as opposed to the employer to provide a workplace free from harassment and discrimination. Luckily, the revisions to the NYSHRL have specifically weakened the impact of this defense. Prior to these revisions, an employer who successfully argued the applicability of this defense almost always won. However, the new statute specifically provides that the defense is no longer “determinative.” As a result, it is no longer dispositive if an employee failed to complain about harassment and discrimination. By specifically weakening this affirmative defense, New York State just became more employee friendly. ALL EMPLOYERS NOW COVERED After these reforms take effect, all employers in New York State are subject to the NYSHRL. Prior to this most recent round of revisions, other than employees alleging sexual harassment (for which all employers were already covered) only employers who employed four or more individuals were subject to the NYSHRL. This meant that a number of employees, working for small businesses, were not provided protection from harassment and discrimination based on other protected classes (race, religion, sexual orientation, age, disability, etc.). By extending the statute to cover all employers, every New Yorker is now afforded protection against harassment and discrimination in the workplace. CONCLUSION Overall, the above revisions to the NYSHRL will likely make it harder for employers to dismiss employee’s claims of harassment and discrimination. Likewise, they will allow larger verdicts in cases that allege violations of the NYSHRL. Finally, each and every New Yorker is nowprotected fromharassment and discrimination in the workplace. These changes will make the workplace safer from harassment and discrimination and should have significant impacts across New York State. LM New York State had their day in court, were awarded sizeable verdicts by juries of their peers, and then had such awards unilaterally lowered due to technicalities in the statutes. This was a windfall for employers across the State. However, with this change, employers will no longer be able to rely on the lack of punitive damages under the NYSHRL to avoid punishment for harassment and discrimination they allow to happen at work. Simply put, to avoid a potentially crippling jury verdict, employers now must ensure that employees are not harassed and/or discriminated in the first place. ELIMINATION OF THE FARAGHER-ELLERTH DEFENSE Among other defenses, the Faragher-Ellerth defense has developed into one of the most vital tools in an employer’s toolbox in dismissing employee’s harassment and discrimination claims. In essence, the defense allows ABOUT GREGORY W. KIRSCHENBAUM, ESQ. Mr. Kirschenbaum was recognized as a “Rising Star” in 2017, 2018, and 2019 by New York Super Lawyers for his contributions in employment discrimination law. Mr. Kirschenbaum has also been awarded the “Lead Counsel” rating in Labor & Employment Law for 2018. Along with his trial experience, he has litigated numerous cases in both State and Federal courts handling all types of discrimination cases, as well as wage and hour claims. In 2015, he was co-trial counsel that won a $2.2M jury verdict in a race discrimination case in the Southern District of New York. CONTACT Gregory W. Kirschenbaum, Esq. Attorneys at Law, PLLC 45 Broadway, Suite 620, New York, NY 10006 Tel: 212-248-7431 Fax: 212-901-2107 gkirschenbaum@tpglaws.com nycemploymentattorney.com Professional Excellence By Gregory W. Kirschenbaum, Esq., Phillips & Associates 83 SEP 2019 | WWW.LAWYER-MONTHLY.COM Another immensely important change is that punitive damages will now be recoverable under the NYSHRL