New York Employment Law Update: NDAs Involving Discrimination, Harassment or Retaliation

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:

• the complainant to pay liquidated damages for violation of a nondisclosure clause or non-disparagement clause;
• the complainant to forfeit all or part of the consideration for the agreement, for violation of a non-disclosure clause or non-disparagement clause; or
• any affirmative statement, assertion, or disclaimer by the complainant that the complainant was not, in fact, subject to unlawful discrimination, including discriminatory harassment, or retaliation.

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. 

New York City adds Height and Weight to List of Protected Categories

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:

• where it is required by federal, state, or local law or regulation; and
• for jobs where:
  • height or weight prevents an individual from performing core or essential job functions and no alternative action would allow the individual to perform the job; or
  • height or weight criteria are reasonably necessary for the execution of the normal operations of the employer.

New York State to Extend Administrative Complaint-Filing Period

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.