The phrase “sexual harassment” has certainly been in the news lately. But, it may be hard to discern when an individual has been a victim of sexual harassment in the workplace, at least in the eyes of the law. The United States Supreme Court has established standards for courts to follow when analyzing sexual harassment claims, yet it is still difficult for judges around the country to determine whether an employer has participated in unlawful activity.
The Supreme court has created a high standard under federal law that plaintiff-employees must clear in order to prove that they were victims of sexual harassment. Fortunately for New York employees, on June 19, 2019, the New York State Legislature approved a bill (S.B.6577) that offers more workplace protections for workers. Below are some of the amendments the bill seeks to make to New York State sexual harassment laws.
Elimination of the Faragher-Ellerth Defense
If an employee brings a claim of sexual harassment against his or her employer, the employer is shielded from liability if the employee did not take advantage of internal preventative measures or opportunities provided by the employer. The Supreme Court established this defense in 1998 in the cases of Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. The amendment would eliminate this defense. Thus, if this bill is signed into law, an employee may have a viable claim of sexual harassment under New York State law against his or her employer regardless of whether he or she, for example, never submitted a complaint to the employer as a result of the employer’s actions before bringing suit.
Removal of the “Severe and Pervasive” Standard
Currently, to clear the federal standard established by the Supreme Court, the harassment endured by the employee must have been severe or pervasive so as to alter the terms and conditions of employment. The newly approved bill states that an employee may have a sexual harassment claim against his or her employer “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” Thus, the standard would be lowered in favor of the employee if the approved bill becomes law. Furthermore, the employer will only have an affirmative defense where “the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or inconveniences.”
Extension of the Statute of Limitations to Three Years
In addition, the legislation looks to extend the statute of limitations for sexual harassment claims filed in the New York State Division of Human Rights from one year to three years.
Protection Against Mandatory Arbitration Clauses
Formerly, under New York State law, employers were only prohibited from including clauses in employment agreements, which stated that the parties must resolve disputes in arbitration where the employee is alleging that he or she suffered from sexual harassment at the hands of the employer. The bill expands this protection against mandatory arbitration clauses by applying the prohibition to all claims of discrimination on the basis of, among other protected categories, age, race, creed, color, national origin, sexual orientation, gender identity or expression, disability, and sex.
Prohibition of Nondisclosure Agreements
Similar to the expansion of protections against mandatory arbitration clauses, the recently passed legislation includes a provision that adds to the disallowance of nondisclosure agreements in settlements of sexual harassment claims to apply to all discrimination claims as well. A nondisclosure agreement will be valid if the plaintiff prefers the agreement after having twenty-one days to consider the agreement. The legislation also adds that if the plaintiff prefers the nondisclosure agreement, it must be in writing and written in the plaintiff’s native language.
In addition, any term or condition of a nondisclosure agreement that prevents a plaintiff from “initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with an investigation conducted by a local, state, or federal agency” will be void. Lastly, any provision of a nondisclosure agreement that prohibits the plaintiff from disclosing facts related to any future discrimination claim will be annulled unless the provision states that the plaintiff may speak with various governmental or administrative bodies or an attorney.
More Sexual Harassment Policy Requirements
New York employers will be required to provide, at both the time of hiring and at every sexual harassment training program, notice consisting of the employer’s sexual harassment training policy and information that will be presented at the employer’s sexual harassment prevention training program.
Addition of a Liberal Construction
The bill also amends the New York State Human Rights Law by adding a liberal construction provision. This provision would apply regardless of the interpretation of the federal civil rights law with similar language. Furthermore, exceptions and exemptions to the Humans Rights Law will “be construed narrowly in order to maximize deterrence of discriminatory conduct.” In essence, interpretations of the law would most likely be interpreted in favor of the employee.
If you have questions about sexual harassment laws in New York or the amendments to the New York State Human Rights Laws, contact a Long Island employment lawyer at Famighetti & Weinick PLLC at 631-352-0050.
Today’s Long Island employment law blog was written by Lucas Klirsfeld, a Hofstra Law student and intern at Famighetti & Weinick PLLC.