An important limitation on employees’ rights under various antidiscrimination statutes is how each statute defines “employer.” Most laws set a minimum threshold of number of employees. Employers with fewer employees than that number are not considered “employers” within the meaning of that statute. In practice, this means that employees of small employers are not eligible for those laws’ protection against workplace discrimination, sexual harassment, and other unlawful practices. A new law passed by the New York Legislature, which the Governor is expected to sign, will expand the coverage of the New York State Human Rights Law (NYSHRL) to almost all employers in the state. The Legislature previously amended the NYSHRL to eliminate the minimum employee count for claims involving alleged sexual harassment. The new bill, A8421/S6577, as amended by S6594, makes the full range of the NYSHRL’s provisions applicable to employers of all sizes.
Title VII of the Civil Rights Act of 1964 defines an “employer” as a person who employs at least fifteen people for at least twenty weeks in the current, or the most recent, calendar year. 42 U.S.C. § 2000e(b). The federal government, its agencies, and any corporation wholly-owned by the federal government are not considered “employers” under Title VII. Indian tribes and the government of the District of Columbia are also exempt from Title VII’s definition.
The New York City Human Rights Law (NYCHRL) defines an “employer” as any person with four or more employees. N.Y.C. Admin. Code § 8-102. Much like the NYSHRL prior to the new amendments, the statute makes an exception in cases involving alleged sexual harassment. The NYCHRL also provides that individuals who are employed as independent contractors count towards the employer’s employee count, as long as they do not employ anyone themselves.
The NYSHRL, as currently written, also excludes anyone with fewer than four employees from its definition of “employer.” N.Y. Exec. L. § 292(5). It makes an exception in cases of alleged sexual harassment, stating that in those cases, the definition “shall include all employers within the state.” Id. It also includes all employers of domestic workers with regard to sexual harassment claims. See id. at § 296-B.
A8421/S6577 passed both the Assembly and the Senate on June 19, 2019. The bill amends the NYSHRL’s above-quoted definition of “employer” to remove all mention of number of employees, cross-references to domestic workers, and mention of sexual harassment. The remaining language states, somewhat circularly, that “[t]he term ‘employer’ shall include all employers within the state.” The bill also adds that the definition of “employer” includes “the state and all political subdivisions thereof.”
One day after A8421/S6577 passed the Legislature, both houses passed S6594. This bill removes the addition of “the state and all political subdivisions thereof” to the definition of “employer.” Should the Governor sign the bills, the NYSHRL would therefore apply to all private employers, regardless of size, but not necessarily the state. It will take effect 180 days after it is signed.
The knowledgeable and experienced employment attorneys at Phillips & Associates advocate on behalf of New York City employees, former employees, and job seekers, helping them assert their rights in claims under federal, state, and municipal law. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to see how we can assist you.