"Severe or Pervasive": The Federal Harassment Test New York Abandoned

"Severe or pervasive" is the federal test for a hostile work environment under Title VII.⁠^[1] It is not the test under the New York State Human Rights Law (NYSHRL) for claims that accrued on or after October 11, 2019, and it is not the test for liability under the New York City Human Rights Law (NYCHRL).⁠^[2][3][5] As of October 2026 it governs in New York only federal claims and State claims that accrued before October 11, 2019.⁠^[1][4]

Where the phrase comes from

In Meritor Savings Bank v. Vinson (1986), the U.S. Supreme Court held that sexual harassment creating a hostile or abusive work environment violates Title VII even without economic loss, and said that to be actionable the harassment "must be sufficiently severe or pervasive" to alter the conditions of the victim's employment and create an abusive working environment.⁠^[7][1] In Harris v. Forklift Systems (1993) the Court reaffirmed that standard and described it as a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.⁠^[8]

Under that federal test the environment must be one a reasonable person would find hostile or abusive, and the employee must also perceive it as abusive.⁠^[9] The Supreme Court later said that conduct must be extreme to amount to a change in the terms and conditions of employment, and that simple teasing, offhand comments and isolated incidents, unless extremely serious, will not do.⁠^[10] The guide to the federal hostile work environment test explains how federal courts in New York apply it.

Where it still applies in New York

• Federal Title VII claims. The test is unchanged.⁠^[1][8]
• Other federal claims. The Second Circuit applies the same hostile work environment standard under 42 U.S.C. § 1981 and § 1983, and to disability harassment claims under the Americans with Disabilities Act.⁠^[11][12]
• Older State claims. NYSHRL hostile work environment claims that accrued before October 11, 2019, are judged by the former severe or pervasive test.⁠^[4]

What New York State did in 2019

Before 2019, New York's highest court treated the standards for recovery under the NYSHRL as the same as the federal standards under Title VII.⁠^[13] A State hostile work environment claim therefore required a workplace permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive to alter the conditions of employment.⁠^[4]

Chapter 160 of the Laws of 2019, signed on August 12, 2019, rewrote that.⁠^[14] It added a new paragraph, N.Y. Executive Law § 296(1)(h), which now does five things:⁠^[3]

1. It makes harassment because of any listed protected characteristic an unlawful discriminatory practice "regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims."⁠^[2]
2. It states the new test: harassment is unlawful when it subjects an individual to inferior terms, conditions or privileges of employment because of membership in a protected category.⁠^[2]
3. It gives the employer an affirmative defense that the conduct does not rise above what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.⁠^[2]
4. It says the employee need not point to another individual to whom their treatment can be compared.⁠^[2]
5. It says that the employee's not having complained to the employer "shall not be determinative" of whether the employer is liable.⁠^[2]

The same 2019 law changed how the whole statute is read. The NYSHRL must now be construed liberally to accomplish its remedial purposes, regardless of whether federal civil rights laws with comparable wording have been so construed.⁠^[15] New York State's own model sexual harassment prevention policy puts the result in plain words: "Harassment does not need to be severe or pervasive to be illegal."⁠^[16]

Which State claims get the new standard: the accrual date

Section 296(1)(h) took effect on the sixtieth day after the law was signed, which is October 11, 2019.⁠^[3] The session law says the change applies only to claims that "accrued" on or after the effective date.⁠^[17]

When the State-law claim accrued	Standard under the NYSHRL
Before October 11, 2019	Severe or pervasive, as under Harris v. Forklift Systems⁠[4]
On or after October 11, 2019	Inferior terms, conditions or privileges of employment, with the petty-slights affirmative defense⁠[2][3]

Two details are easy to get wrong. First, chapter 160 as originally passed said it applied to claims "filed" on or after the effective date; a chapter amendment, chapter 161 of the Laws of 2019, changed that word to "accrued."⁠^[17] What matters is therefore when the claim accrued, not when the complaint was filed.⁠^[17] Second, the old cases are still on the books and still cited, so their outcomes are easy to mistake for current law. In Forrest v. Jewish Guild for the Blind (2004), for example, the Court of Appeals held that the use of three racial epithets over a nine-year employment history did not satisfy the severe or pervasive test.⁠^[18] That was a ruling under the former standard, which now governs only claims that accrued before October 11, 2019.⁠^[4]

One group is still described in older words. For unpaid interns, N.Y. Executive Law § 296-c(3) continues to describe harassment in terms of "unreasonably interfering" with work performance by creating "an intimidating, hostile, or offensive working environment."⁠^[19]

New York City: rejected by the courts in 2009

The City got there earlier and by a different route. The NYCHRL requires that it be construed liberally for the accomplishment of its "uniquely broad and remedial purposes," regardless of whether comparably worded federal or New York State laws have been so construed.⁠^[20] Under the City's 2005 Restoration Act, interpretations of similar federal and State provisions are a floor below which the City law cannot fall, not a ceiling.⁠^[21]

Applying that mandate in Williams v. New York City Housing Authority (2009), the Appellate Division, First Department, concluded that questions of severity and pervasiveness apply to the scope of permissible damages "but not to the question of underlying liability."⁠^[5] The court reasoned that the severe or pervasive rule had "routinely barred the courthouse door" to women who had in fact been treated less well than men because of gender, and that it reduced employers' incentive to create workplaces with zero tolerance for demeaning conduct.⁠^[22] It observed that a wide spectrum of harassment cases falls between "severe or pervasive" and a merely offensive utterance.⁠^[23]

Later decisions followed:

• In 2011 the Appellate Division, Second Department, adopted the Williams standard in Nelson v. HSBC Bank USA and ordered a new trial because the jury had been told that "severe and pervasive" conduct was an element of the City-law claim.⁠^[24][25]
• In 2013 the federal Second Circuit said in Mihalik v. Credit Agricole Cheuvreux North America that the federal severe or pervasive standard of liability no longer applies to NYCHRL claims and that severity or pervasiveness is relevant only to the scope of damages.⁠^[5]
• In 2016 the City Council wrote into N.Y.C. Administrative Code § 8-130(c) that the majority opinion in Williams is among the decisions that correctly understood the liberal-construction requirement.⁠^[26]

What replaced the old test in the City is the question whether the employee was treated less well than other employees because of a protected characteristic.⁠^[27] See New York City's "treated less well" standard.

The three layers compared

Layer	Is severe or pervasive conduct needed for liability?	What the law asks instead
Federal (Title VII)	Yes⁠[1]	Not applicable; severity or pervasiveness is the test, judged objectively and subjectively on all the circumstances⁠[9][28]
New York State (NYSHRL), claims accruing on or after October 11, 2019	No⁠[2][3]	Inferior terms, conditions or privileges of employment because of a protected category⁠[2]
New York City (NYCHRL)	No; it goes to damages⁠[5]	Treated less well than other employees because of a protected characteristic⁠[27]

What the change does and does not mean

The same facts can now produce different results under different laws in one lawsuit. In Hernandez v. Kaisman (2012), the First Department held that a doctor's emails with sexual content and sporadic comments about employees' bodies did not meet the State "severe and pervasive" test then in force, yet the City-law claim survived summary judgment because the case was not "truly insubstantial."⁠^[29][30] In Nelson, the Second Department said the jury could reasonably have found that the harassment, "while not severe and pervasive, constituted more than petty slights and trivial inconveniences."⁠^[24] The State-law half of Hernandez was decided under the pre-2019 test and does not describe State law for claims that accrued on or after October 11, 2019.⁠^[3][4]

The change does not turn either New York law into a code of workplace manners. The NYCHRL is not a general civility code, and the plaintiff still has to show that the conduct was caused at least in part by a discriminatory motive.⁠^[31] The NYSHRL still ties harassment to membership in a protected category, and both laws give the employer the petty-slights defense.⁠^[2][6] The guide to the petty slights defense explains where that floor sits and who has to prove what.

Other questions in a harassment case have their own rules: who answers for the harasser's conduct, how long there is to file, and where. Those are covered in employer liability for supervisor and coworker harassment, New York employment claim deadlines and choosing between the EEOC, the Division of Human Rights, the NYC Commission and court.

What people commonly get wrong

• "New York requires severe or pervasive harassment." Only federal law does, along with State claims that accrued before October 11, 2019.⁠^[1][4]
• "The new State standard applies to any case filed after 2019." It applies to claims that accrued on or after October 11, 2019.⁠^[17][3]
• "One comment can never be enough." Under the NYCHRL even a single comment may be actionable in the proper context, and in the federal Second Circuit a single sufficiently serious act can meet the federal threshold.⁠^[32][33] See can one incident be a hostile work environment?
• "Severity no longer matters." Under the NYCHRL it remains relevant to the scope of damages.⁠^[5]

For how this change sits among the other amendments of 2019 to 2026, see recent changes to New York employment discrimination law.