On March 7, 2018, the New York City Council formally introduced “The Stop Sexual Harassment in NYC Act,” a package of 11 bills, aimed at strengthening protections against, and remedies for, sexual harassment in the workplace. As discussed below, four of these bills, if enacted, would significantly expand the obligations of many employers to prevent sexual harassment and would increase all private NYC employers’ vulnerability to sexual harassment claims.

Mandatory Sexual Harassment Training

Int. 632 would require all private NYC employers with 15 or more employees to conduct annual, “interactive” training on sexual harassment for all full-time and part-time employees who work more than 80 hours in a calendar year in NYC. The training could be in person or through an online program.

Specifically, the annual, interactive training for employees must include the following:

  • An explanation of sexual harassment as a form of unlawful discrimination under local, state and federal law;
  • A description of what sexual harassment is and is not, using practical examples;
  • A description of the employer’s internal complaint processes, if any, available to employees to address sexual harassment claims;
  • A description of the complaint process available through the Commission on Human Rights (“Commission”), the New York State Division of Human Rights and the federal Equal Employment Opportunity Commission, including contact information;
  • An explanation, with examples, of what constitutes “retaliation” under the New York City Human Rights Law (“NYCHRL”); and
  • A discussion of the importance of bystander intervention.

In addition to this general training requirement, NYC employers would also be required to train their supervisors and managers annually on subjects such as their role in the prevention of harassment and retaliation, and how to address sexual harassment complaints.

The bill defines “interactive training” as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, or other participatory forms of training as determined by the commission.” The bill further directs the Commission to develop online training modules for small, medium and large workplaces that would satisfy the training requirement, and to allow for the electronic provision of certification each time an employee completes a training module.

Additionally, covered employers would be required to maintain records, for three years, of all training, including a signed employee acknowledgement that must include (i) the date, time, title, duration and location of the training; (ii) whether the training was conducted live or online; and (iii) the name of the person(s) who conducted the training.

If passed, Int. 632 will take effect on September 1, 2018. Penalties for violations of the law would range from $100-$500 for the first violation and from $500-$2,000 for each succeeding violation. However, an employer would be able to avoid a penalty for a first-time violation if the employer could prove within 60 days of the issuance of the notice of violation that it has complied with the law. 

New Sexual Harassment Poster

Int. 630 would require all employers in New York City to post a sexual harassment rights and responsibilities poster in English and Spanish, and to provide new hires with an information sheet on sexual harassment, which would both be created by the Commission and made available to employers.  If passed, Int. 630 would take effect 120 days after enactment and would carry civil penalties for non-compliance.

More Time to File a Complaint

Int. 663 would lengthen the statute of limitations for harassment claims arising under the NYCHRL. Instead of the current one-year statute of limitations, aggrieved employees would be permitted to file complaints up to three years from the date of the alleged harassment. This longer statute of limitations would apply to claims “based on unwelcome conduct that intimidates, interferes with, oppresses, threatens, humiliates or degrades a person based in whole or in part on such person’s gender.”  This bill would take effect immediately upon enactment.

Expanded Employer Coverage under the NYCHRL

Currently, the NYCHRL applies to employers with four or more employees. Int. 657 would eliminate that employee threshold with respect to gender-based harassment claims, thereby subjecting all NYC employers to potential liability for sex harassment under the NYCHRL.[1]


We will continue to monitor these bills as the legislation proceeds and provide updates on any significant developments.

[1] New York State expanded sexual harassment and discrimination protections to all employees in 2015.

On March 28, 2016, New York City Mayor Bill de Blasio signed three pieces of legislation passed earlier this month by The New York City Council to amend the City’s Human Rights Law (“NYCHRL”).

The new laws:

  1. require that the NYCHRL be interpreted expansively to maximize civil rights protections, regardless of how courts have interpreted similar provisions under federal and state anti-discrimination laws;
  2. permit the City’s Commission on Human Rights the authority to award attorney’s fees and costs to complainants in cases brought before the Commission; and
  3. repeal language addressing how to construe the NYCRHL’s prohibition against discrimination on the basis of sexual orientation.

The repealed language provided that the NYCHRL should not be construed to, among other things, restrict an employer’s right to insist that an employee meet bona fide job-related qualifications of employment, or authorize affirmative action on the basis of sexual orientation.

The laws became effective immediately upon the Mayor’s signature. Employers should be aware of the enhanced protections for their New York City employees.

John M. O’ConnorRetail employers and other businesses that serve the public in New York City should take particular notice of the New York City Commission on Human Rights’ detailed written guidance issued on December 21, 2015, reinforcing its desire that the protections afforded to transgender individuals by the New York City Human Rights Law (“NYCHRL”) be broadly interpreted to ensure that transgender individuals receive the full protection of the NYCHRL. The guidance includes specific examples of what the Commission believes constitutes unlawful discrimination based on an individual’s actual or perceived transgender status, gender identity, self-image, appearance, behavior or gender expression.

The Commission stresses the need for employers in New York City to use an employee’s preferred name, pronoun (he/she) and title (Mr./Mrs.) regardless of the employee’s “sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.”  Recognizing that many transgender and gender non-confirming individuals choose to use a different name than the one they were given at birth, or chose to use gender neutral pronouns (such as ze/hir), the Commission explains that employees expressing such a preference “have the right to use their preferred name.”  Refusal by an employer to use an employee’s preferred name, pronoun or title because they do not conform to gender stereotypes is a violation of the NYCHRL.  Thus, if a transgender woman advises that her preferred name is Jane, even though her identification states that her first name is John, it would be a violation of the NYCHRL for the employer to refuse to call her Jane.  The Commission suggests in its guidance that employers should consider creating a workplace policy of asking all employees what their preferred name and gender pronoun are so that employees can self-identify, and so that no single employee is singled out for such questioning (giving rise to a potential harassment claim).

The Commission also addresses employer dress code and grooming policies, advising that employers “may not require dress codes or uniforms, or apply grooming or appearance standards, that impose different requirements for individuals based on sex or gender.”  The Commission expressly rejects the federal standard that allows employers to apply different dress code or grooming policies to male and female employees unless the policies create an undue burden on employees.  Rather, the Commission opines that “holding individuals to different grooming or uniform standards based on gender serves no legitimate non-discriminatory purpose.”  Thus, while employers are entitled to enforce a dress code or require certain grooming/appearance standards, they must do so without imposing restrictions or requirements specific to gender or sex.  In this regard, polices such as allowing only women to wear jewelry, or requiring only male employees to maintain short hair would be violations of the NYCHRL, as would a policy requiring different uniforms for men and women.  Accordingly, to avoid violations, employers should create gender-neutral dress codes and grooming standards.

Retailers and other businesses that serve the public should also note the Commission’s position that the NYCHRL, “requires that individuals be permitted to use single-sex facilities, such as bathrooms or locker rooms … consistent with their gender, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification.”  Recognizing that other employees or customers may object to sharing a bathroom with a transgender or gender non-conforming person, the Commission warns that “such objections are not a lawful reason to deny access to that transgender or gender non-conforming individual.”  The Commission suggests that, to avoid violating the NYCHRL, employers should, “wherever possible,” provide single-occupancy restrooms (that can be used by people of all genders), or provide private space within multi-use bathrooms or locker rooms for anyone who has privacy concerns.  However, it would be a violation to force a transgender or gender non-conforming person to use a single-occupancy restroom if he/she/ze does not want to use it.  The Commission suggests that employers should post signs in all single-sex bathrooms or locker rooms that state that: “Under New York City Law, all individuals have the right to use the single-sex facility consistent with their gender identity or expression.”

By issuing the guidance, the Commission makes very clear its intention to protect transgender individuals from discrimination based on their transgender status and gender expression.  The guidance concludes with a bold reminder of the penalties for violating the NYCHRL’s prohibition of gender identity discrimination.  In addition to the remedies available at law to aggrieved individuals who prevail on claims under the NYCHRL, the Commission can impose civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the product of willful, wanton or malicious conduct.  Accordingly, to avoid potential violations, New York City employers should consult with counsel to ensure that they create new policies and/or amend existing policies to comply with the directives set forth in the Commission’s guidance, and to minimize the likelihood of a violation of the NYCHRL.

For additional information regarding the Commission’s guidance and other recent developments affecting New York City employers, see our January 28 Act Now Advisory, “NYC Employers Risk New Penalties in 2016: Gender and Caregiver Discrimination, Paying Freelancers.”

by Barry Asen

New York management-side attorneys and their clients were surprised and chagrined when they read Bennett v. Health Management Systems, Inc., a case decided in December 2011 by the New York State Supreme Court, Appellate Division, First Department (“the First Department”), which sits in Manhattan.  Writing for the unanimous five-judge court, Justice Rolando Acosta directed that because the New York City Human Rights Law (“NYCHRL”) explicitly provides that it should be liberally construed, summary judgment motions should only be granted in the employer’s favor in “rare and unusual” circumstances.

Justice Acosta stated that even if a terminated employee is unable to produce any evidence of discrimination, summary judgment should be denied and a jury trial ordered if the employee can show that the employer’s reason for the termination is “false, misleading or incomplete.”  For example, if an employee with a poor performance record is terminated because of his performance, but his supervisor – to spare his feelings – tells him only that his job was eliminated, a jury trial would be required to determine whether discrimination occurred under the NYCHRL.  Under federal and New York State law (e.g., Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the New York State Human Rights Law), summary judgment for the employer would likely be granted in such circumstances based on the absence of evidence pointing to discrimination as the reason for the termination.

Recently, however, in Melman v. Montefiore Medical Center, (1st Dep’t May 29, 2012), a different First Department panel disagreed with the Bennett decision.  In a 4-1 majority opinion, with Justice Acosta as the lone dissenter, the First Department returned to the traditional guiding rule in employment discrimination cases that to defeat an employer’s summary judgment motion, the employee must not only produce some evidence showing that the employer’s reason for its decision was “false, misleading or incomplete,” but also evidence demonstrating that “discrimination was the real reason” for the employer’s decision.

The First Department in Melman explained that when there is no evidence of discrimination, a court “should not sit as a super-personnel department that reexamines an entity’s business decision.”  Referring to one of Justice Acosta’s contrary arguments, the Court stated that his “approach appears quite radical to us.”  And the Court concluded, using language that all employers can appreciate, “we see no justification for allowing a meritless lawsuit to continue to divert Montefiore’s limited resources, and the time attention of its staff, from the hospital’s true mission of advancing medicine, protecting public health, and healing the sick.”

The First Department’s decision in Melman is consistent with the decisions of other courts construing federal and New York State anti-discrimination laws.  While the NYCHRL will continue to be interpreted liberally by all courts, an employee is still required to come forward with some evidence of discrimination or else summary judgment should be granted.