October 2019 Employment Law Report

October 2019 was a busy time in the world of employment law. Two major developments include (1) New York State sexual harassment training deadline hits; and (2) the Supreme Court heard oral arguments on a Title VII case which will decide whether the federal workplace anti-discrimination laws prohibits sexual orientation discrimination. Today’s Long Island employment law blog discusses these developments.

1. Sexual Harassment Training in New York

As of October 9, 2019, all employers in New York, regardless of size, must have completed sexual harassment training for all employees. The training must include an explanation of what sexual harassment is, it must provide examples of sexual harassment, it must discuss available remedies for victims of sexual harassment, and it must discuss how victims can bring complaints of sexual harassment.

The training must be interactive.  Employers can use online trainings, but employees must be able to ask questions and otherwise interact. Employers have a variety of options available to provide the training. Employers can hire an employment law firm, such as Famighetti & Weinick, PLLC, employers can use the tools and resources provided by the New York State Department of Labor, or employers can hire a human resources company. In addition, the New York City Commission of Human Rights has an online training program which is approved for use as a training for compliance with New York State’s laws.

The most frequent question we hear about the sexual harassment training requirement is about penalties. Employers want to know what is the penalty for failing to meet New York State’s sexual harassment training requirement. The answer is not easy. The law does not appear to set a penalty from the State. But, this does not mean that there is no penalty. If an employer has an Employment Practices Liability Insurance Policy (EPLI), the insurance carrier may not pay or defend claims of sexual harassment in the employer did not comply with the training requirements. Additionally, employers who have not done the training, but are sued for sexual harassment, may be hampered in defending themselves in court.

Notwithstanding, best practices dictates that employers should be providing sexual harassment training. If you’re an employer in New York State and have not yet completed sexual harassment training, you should do so immediately.

2. Does Title VII Prohibit Discrimination Based on Sexual Orientation or Transgender Status?

In a series of cases before the United States Supreme Court, the nation’s highest court will decide whether federal law prohibits workplace discrimination based on sexual orientation and transgender status. By way of brief background, Title VII is the federal law which prohibits workplace discrimination. Many states, including New York, prohibit employment discrimination based on many characteristics including sex and sexual orientation, Title VII does not expressly include sexual orientation.

Federal courts, interpreting Title VII, had long ago determined that Title VII does not include protections for employees’ sexual orientation. As the issue evolved, several courts, including New York’s federal appellate court, revisited the issue and reversed prior decisions. New York’s Second Circuit decided that Title VII indeed prohibits discrimination based on sexual orientation. That case, and another, made it to the Supreme Court.

The Court’s decision will likely hinge on one of two points. Will the Justices rely on the meaning of the word “sex”, or will the Justices look towards Congress’s intent in passing Title VII.  The Justices questions at oral argument suggested that the decision may fall predictably along ideological lines, with the ultimate outcome hinging on one or two conservative leaning Justices who seemed to be on the fence.

In New York, the decision will not have a major impact on workplace protections because New York’s discrimination law specifically protect sexual orientation. But the decision will have symbolic implications and will also extend protections to areas of the country where sexual orientation discrimination is not prohibited by state law. This controversial decision will likely not be delivered until the end of the Court’s term in June. We’ll be following developments closely.

If you want to learn more about New York’s sexual harassment training requirements, or the Supreme Court cases concerning sexual orientation and transgender discrimination, contact Famighetti & Weinick PLLC at 631-352-0050. You can also read more about these issues on our employment law available at https://www.linycemploymentlaw.com/blog.