An Update to Sexual Harassment Legislation in New York

In the wake of the #MeToo movement, states across the country have started to enact legislation to combat sexual harassment in the workplace. The general idea is that organizations both large and small will take harassment more seriously if there are severe penalties for noncompliance.

This is especially true in the state of New York. On June 19, the New York Assembly and Senate passed anti-sexual harassment legislation that strengthens protections for both public and private employees throughout the state. With the passage of these bills (A08421 in the Assembly and S6577 in the Senate), New York has become one of the most forward-looking states in protecting survivors and deterring bad behavior in the workplace.

Game Changing Legislation

The New York State Assembly and State Senate legislation contains several key provisions that are designed to combat sexual harassment in the workplace.

One of the most prominent features of both bills centers on non-disclosure agreements (“NDAs”). In the past, victims of sexual harassment often could not speak about their experiences after a settlement due to the existence of NDAs. Under this legislation, NDAs could not bar a survivor from speaking out against all claims of discrimination (not just sexual harassment claims). Unless it is the victim’s preference to keep the claims confidential, he or she cannot be barred from speaking out. In other words, employers—no matter how much they want to keep sexual harassment allegations private—have lost the ability to legally bind survivors from going public about their allegations of any type of discrimination.

Similar to the inability to use NDAs to keep survivors quiet, the new legislation also prohibits mandatory arbitration for all forms of discrimination. Forced arbitration was thought to be a way for companies to discreetly litigate sexual harassment claims. Not only that, but arbitration is often seen as a friendly venue for companies and other corporate entities. While earlier legislation in New York prevented mandatory arbitration for sexual harassment claims, this new legislation extends that protection to all claims of discrimination. By eliminating this mandatory arbitration provision, survivors have every right to litigate their claims in the courts.

Significantly, the new Assembly and Senate bills remove the “severe or pervasive” standard from discriminatory and retaliatory harassment cases. The severe or pervasive standard excluded many forms of workplace mistreatment because it was difficult to prove. Instead of this high standard, a plaintiff can establish a claim of discriminatory or retaliatory harassment if he or she was subject “to inferior terms, conditions, or privileges of employment because of the individual’s membership in a protected categor[y].” This lower standard makes it easier for victims to establish discriminatory harassment. Even considering that employers do have an affirmative defense, it is only available if the harassing conduct did not rise above what a “reasonable victim of discrimination” of the same protected characteristic would consider petty slights or trivial inconveniences. This is a low bar for a plaintiff with a real claim of harassment or discrimination.

Employer Responses

These are just some of the features of New York’s new anti-sexual harassment legislation. At a minimum, employers should read the new legislation and speak with their attorneys about how to best comply. That said, one of the best steps that employers can take is to reexamine their anti-harassment policies. Specifically, they should ensure that their anti-harassment training programs are accurate and comprehensive.

Along with this, employers should actively promote a culture of openness. Simple lip service isn’t enough. They should take active steps to ensure that employees can report instances of harassment or discrimination without any reprimands or retaliation. Doing this will help you quickly identify potential cases of harassment or discrimination.

Finally, understand that you cannot compel the silence of survivors or compel arbitration to settle claims. The new legislation prevents you from doing so. Ultimately, if an employee decides to pursue a claim, you will need to be ready for the allegations to become public.

A Step Forward

This new anti-sexual harassment legislation in New York changes the landscape for organizations both large and small. Ultimately, if you are a manager or owner of a New York organization, you will need to take some time to understand the legislation and your obligations under the legislation. Doing so will ensure compliance and help you create a safer environment for your employees.