Why a New York Employment Case Is Worth More Than It Was in 2019

The one woman on the floor of a Hicksville warehouse is called “sweetheart” in every meeting and given the shifts nobody wants. She never complained in writing. Before 2019 a claim like hers had to be “severe or pervasive” to survive the employer’s motion, and “that is not enough” was the answer she was likely to hear.

On August 12, 2019, the governor signed chapter 160 of the Laws of 2019. Claims that were dismissed in 2018 are not dismissed now, and a claim that survives the motion is worth more than one that does not. That is my view. What follows is the statute behind it and what it means for a hostile work environment claim on Long Island.

What used to get a claim like hers dismissed

Before 2019 three rules ended a claim like hers on a motion.

The first was the standard. The Court of Appeals used the federal test: a hostile work environment existed only “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” and “the use of three epithets over a nine-year employment history does not satisfy this test” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004]).

The second was the headcount. The state statute excluded “any employer with fewer than four persons in his or her employ,” and the federal floors are higher.

The third was the reading. “The standards for recovery under section 296 of the Executive Law are in accord with Federal standards under title VII” (Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]).

A dismissed claim has no settlement value, and that is what the 2019 act changed for her.

What the 2019 act did, and when each piece took effect

Chapter 160, the bill S6577, answered each rule in its own section: section 1 the headcount, section 2 the standard (the memorandum in support says it “eliminates the ‘severe or pervasive’ standard”), section 5 the money, section 6 the reading.

Section 16 sets the schedule from August 12, 2019, the day the bill became a law, and section 16(d) is the line an employer’s lawyer reads first: the amended sections “shall only apply to claims filed under such sections on or after the effective date of such sections.” The Second Department reads it that way: the harassment amendment “only applies to claims filed after the amendment’s effective date of October 11, 2019” (Golston-Green v City of New York, 184 AD3d 24, 41 n 3 [2d Dept 2020]). The clock below is the schedule.

The harassment standard now

Section 2 of chapter 160 added the paragraph in the card below, and the argument turns on its words.

The Second Department applied the new paragraph in Elco v Aguiar, 226 AD3d 649, 651 (2d Dept 2024): because the plaintiff sued after October 11, 2019, she “was not required to establish that the alleged harassment was severe or pervasive,” and she had “a cause of action under this more liberal standard.” Two 2026 Second Department decisions, McIntosh v City of New York, 2026 NY Slip Op 01780 (2d Dept 2026), and Morse v Fortune Socy., Inc., 2026 NY Slip Op 05021 (2d Dept 2026), still recite the Forrest formulation without discussing the amendment; therefore, the standard is still argued motion by motion.

Value follows the motion: conduct that failed “severe or pervasive” in 2018 states a claim today, and in my judgment a claim that survives is one the employer has to price. The EEOC’s 2026 rescission of its harassment guidance changed nothing in that paragraph; the racist texts, memes and graffiti post answers “inferior terms” from screenshots.

For the Hicksville employee the question is no longer whether “sweetheart” was severe or pervasive but whether the shifts were inferior terms of employment because of sex; she needs no comparator, and her missing complaint “shall not be determinative.”

Severe or pervasive went out the door seven years ago. If a lawyer told you in 2018 that what happened to you was not enough, that answer came from a test that is gone. The claims that used to be dismissed are not dismissed now, and the settlement value has gone up quite a bit because of it. Your employer will still move to dismiss. Everything will be argued. Keep the dates and the messages, because the motion gets decided on them.

Every employer in the state, with no headcount

Section 1 of chapter 160 struck the old floor. Executive Law § 292(5) reads: “The term ‘employer’ shall include all employers within the state,” for claims filed on or after February 8, 2020.

The federal floors did not move, so a nine-person office is outside Title VII and the ADEA (quoted in the compare cards below); here, it is an employer under the state statute, with the state remedies.

The Hicksville warehouse is over every floor; for its employee the point is the remedies.

The money: punitive damages, fees and no cap

Section 5 of chapter 160 amended Executive Law § 297. The contrast is federal: in the Lely conciliation announced September 10, 2026, the EEOC said Lely North America, Inc. agreed to pay $65,000 “in back pay, compensatory damages and attorney’s fees” on findings of a raise denied because of sex under Title VII and an age-based constructive discharge under the ADEA. Under 42 USC § 1981a(b)(3) compensatory damages for “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses” plus punitive damages “shall not exceed, for each complaining party,” $50,000 to $300,000 by employer size, and “the court shall not inform the jury of the limitations.”

Subdivision 9 of the state section gives the aggrieved person “a cause of action in any court of appropriate jurisdiction for damages, including, in cases of employment discrimination related to private employers and housing discrimination only, punitive damages.” Subdivision 10 lets the court award reasonable attorney’s fees “to any prevailing or substantially prevailing party”; a prevailing employer “must make a motion requesting such fees and show that the action or proceeding brought was frivolous.”

Subdivision 9 has no dollar figure and no sentence about the jury. That is the value point for the Hicksville employee: the same facts, pleaded under the state statute against a private employer, are not subject to the federal ceiling.

Summary judgment: the make-or-break point

Summary judgment is the make-or-break point, which is why most discrimination cases never reach a jury. The employer’s motion is built on the personnel file, a manager’s affidavit and federal cases construing Title VII.

Section 6 of chapter 160 rewrote the construction clause, Executive Law § 300: “The provisions of this article shall be construed liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws, including those laws with provisions worded comparably to the provisions of this article, have been so construed. Exceptions to and exemptions from the provisions of this article shall be construed narrowly in order to maximize deterrence of discriminatory conduct.”

In Wright v White Plains Hosp. Med. Ctr., 237 AD3d 1143 (2d Dept 2025), the Second Department wrote that the NYSHRL standards “previously were the same as those governing title VII cases,” and then: “As a result of the amendment, the NYSHRL now aligns with the standards of the New York City Human Rights Law.” Consequently, the employer’s federal cases no longer end the argument.

CPLR 3212(b) sets the standard: the motion “shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.” Her messages are facts, and facts defeat the motion.

My judgment is that the state-court standard is harder for an employer than the federal court’s, and Wright is the reason. The Second Department held that an employer’s motion is analyzed under McDonnell Douglas “and under the newer mixed-motive framework, which imposes a lesser burden on a plaintiff opposing such a motion.” The employer must show “no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions,” and the employee defeats the motion with evidence of pretext or with evidence “that discrimination was one of the motivating factors for the defendant’s conduct” (Wright, 237 AD3d 1143). The Wright plaintiff still lost, because she “offered nothing but speculation.” The comparison with federal court is my position as a practitioner; the appellate courts will prove or disprove it as the law under the amended statute matures.

The employer therefore needs a legitimate basis for what it did, documented at the time in the personnel file and not in a manager’s memory, and in my judgment under New York law one with no nexus to the protected activity (why the personnel file decides the case, publishing October 8, 2026). For the Hicksville employee, the motion turns on the schedule and the reason written down for it at the time.

Retaliation: the heavy claims

The retaliation claims are the heavy claims, and retaliation is never one statute. Executive Law § 296(7) forbids retaliation against a person who “opposed any practices forbidden under this article” or “filed a complaint, testified, or assisted in any proceeding under this article,” with the remedies in subdivision 9 quoted above. Labor Law § 215(1)(a) reaches a complaint about conduct the employee “reasonably and in good faith, believes violates any provision of this chapter,” and subdivision 2(a) gives reinstatement or front pay, “lost compensation and damages,” liquidated damages of “not more than twenty thousand dollars,” costs and attorney’s fees. Labor Law § 740(5) reaches whistleblowers: reinstatement or front pay, lost wages and benefits, attorney’s fees, a civil penalty of up to $10,000 and “punitive damages, if the violation was willful, malicious or wanton.” A public employee’s claim is Civil Service Law § 75-b. The standard and the causation test are in the retaliation standard post of October 7, 2026.

Had she complained and the shifts gotten worse the week after, that would be the heavy claim, running on the schedule the employer wrote.

What this means for the Hicksville employee, and when to call

Every date on the clock is behind her; the clocks that remain are hers, both three years, quoted with their sections in the FAQ below.

The two doors are an election: Executive Law § 297(9) gives the court action “unless such person had filed a complaint hereunder or with any local commission on human rights,” subject to the exceptions it lists, and “as a general rule, the remedies are intended to be mutually exclusive” (Matter of Marine Midland Bank v New York State Div. of Human Rights, 75 NY2d 240, 245 [1989]). Consequently, the first decision is which door, and she makes it with a lawyer before anything is filed. Ask how long an employment lawsuit takes at the same meeting.

Calendar three years from the last act. Bring these to the first call:

• The dates: first incident, last incident, and the day you complained, if you did.
• The messages: texts, emails, group-chat screenshots and photos of anything posted at work, dated.
• The employer’s paper: schedules, write-ups, reviews, the transfer or termination letter, pay stubs before and after, and the headcount as best you know it.
• Anything you signed: an arbitration clause, handbook acknowledgment, separation agreement or release.

Sources

• Chapter 160 of the Laws of 2019 (S6577), with the memorandum in support and section 16
• Executive Law § 292
• Executive Law § 296
• Executive Law § 297
• Executive Law § 300
• Chapter 656 of the Laws of 2023 (S3255)
• CPLR 214
• CPLR 3212
• Labor Law § 215
• Labor Law § 740
• Civil Service Law § 75-b
• 42 USC § 2000e
• 42 USC § 2000e-2
• 42 USC § 2000e-5
• 42 USC § 1981a
• 29 USC § 630
• Elco v Aguiar, 226 AD3d 649 (2d Dept 2024)
• Wright v White Plains Hosp. Med. Ctr., 237 AD3d 1143 (2d Dept 2025)
• Syeed v Bloomberg L.P., 41 NY3d 446 (2024)
• Golston-Green v City of New York, 184 AD3d 24 (2d Dept 2020)
• McIntosh v City of New York, 2026 NY Slip Op 01780 (2d Dept 2026)
• Morse v Fortune Socy., Inc., 2026 NY Slip Op 05021 (2d Dept 2026)
• Forrest v Jewish Guild for the Blind, 3 NY3d 295 (2004); Ferrante v American Lung Assn., 90 NY2d 623 (1997); Zuckerman v City of New York, 49 NY2d 557 (1980); Matter of Marine Midland Bank v New York State Div. of Human Rights, 75 NY2d 240 (1989)
• EEOC, Lely North America, Inc. conciliation release (September 10, 2026)

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If your first call ended with “that is not enough,” make a second one, and read why most discrimination cases never reach a jury before it.

If conduct at your Nassau or Suffolk workplace was called “not enough,” call (516) 750-0595 or request a free case review with one document in hand: the message, schedule or write-up that shows what was done, dated.