New York State recently revised its process for securing confidentiality in settlements involving discrimination; harassment, including sexual harassment; or retaliation. The amended New York General Obligations Law Section 5-336 took effect November 17, 2023.
Since 2018, New York law prohibited non-disclosure provisions in agreements to settle discrimination claims “unless the condition of confidentiality is the complainant’s preference” after a mandatory, non-waivable 21-day review and seven-day revocation period. Going forward, complainants, including employees and independent contractors, have up to 21 days to consider the confidentiality provision — like releases of federal age discrimination claims — and may decide to agree to such confidentiality terms before the expiration of the 21-day review period. The seven-day revocation period remains unchanged.
Of note, an analogous review and revocation period requirement in New York Civil Practice Law & Rules General Obligations Law 5003-B was not amended. More specifically, the 21-day review period may not be waived in the event a claim has been filed — whether an administrative claim or in court.
Another important change involves settlements of claims of harassment, including sexual harassment, discrimination and retaliation. Now, Section 5-336 prohibits any settlement of these claims that require:
New York employers long have been required to advise that any agreement that prevents the disclosure of facts related to future claims of discrimination does not prohibit individuals from speaking with their attorneys, law enforcement, the federal Equal Employment Opportunity Commission, the New York State Division of Human Rights, or a local fair employment agency such as the New York City Commission on Human Rights. The amendment to Section 5-336 expands these permitted disclosures to include the New York Attorney General.
Effective November 26, 2023, the New York City Human Rights Law was amended to prohibit discrimination on the basis of actual or perceived height or weight, including in employment. In limited circumstances, height and/or weight may be considered in employment, including:
Starting in February 2024, the period for filing administrative complaints with the New York State Division of Human Rights (DHR) will be extended. Currently, complaints of sexual harassment may be filed with the DHR within three years of the alleged harassment, and complaints about other types of harassment and discrimination may be filed with the DHR within one year. However, effective February 15, 2024, the complaint-filing period will be extended to three years for all unlawful discriminatory practices arising on or after that date. Individuals who did not file at the DHR can continue to sue directly in state court within three years of the alleged discrimination or harassment.
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