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New York Lifts Barrier for Bringing Sexual Harassment Claims (1)

Aug. 12, 2019, 4:25 PMUpdated: Aug. 12, 2019, 8:06 PM

It will now be easier for employees in New York to bring workplace sexual harassment claims to court, under legislation signed by Gov. Andrew M. Cuomo.

The legislation (A.8421/S.6577), signed into law Aug. 12, lifts the legal barrier that the conduct has to be “severe or pervasive” for it to be challenged in court and extends the statute of limitations for claims filed from one to three years.

Effective immediately, it also mandates that all nondisclosure agreements allow employees to file harassment or discrimination complaints with a state or local agency, and testify or participate in a government investigation.

“By ending the absurd legal standard that sexual harassment in the workplace needs to be ‘severe or pervasive’ and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women,” Cuomo (D) said in a statement.

Third State With Law

New York is the third state, following California and Delaware, to pass sexual harassment legislation in the wake of the #MeToo movement.

Many businesses already have updated their policies to ban what’s considered improper behavior, but they will now be required to do so in these states, ensuring their anti-discrimination polices are up to date and meet the new standard.

New York’s legislation overwhelmingly passed 109-19 in the state Assembly and 62-0 in the state Senate on June 19.

“With the signing of this legislation, employers across all sectors will be held accountable for addressing all forms of sexual harassment and discrimination in the workplace, and survivors will be given the necessary time to report complaints and seek the justice they deserve,” bill sponsor state Sen. Alessandra Biaggi (D) said in a released statement.

The measure requires courts to interpret the state Human Rights Law liberally regardless of federal rollback of rights, according to the governor’s office.

The law requires employers to notify employees about sexual harassment policy in English and also in the worker’s primary language. It expands coverage of the state’s Human Rights Law to all employers in the state, including contractors, subcontractors, vendors, and consultants.

Under the law, the state will be required to study how to expand harassment policies to all types of discrimination, and review sexual harassment policies every four years.

Employer Concerns

State business leaders said many employers already provide protections, and the new law punishes those trying to create a workplace free of harassment, opening them up to more litigation.

Eliminating the “severe or pervasive” language could lead to an increase in claims, said Frank Kerbein, director of the Center for Human Resources at the Business Council of New York State.

The law prohibits the use of arbitration for claims dealing with all forms of discrimination including sex, creed, race, national origin, and age. The claims would instead have to go through state agencies or civil court to resolve problems, which could be more costly and time consuming, he said. Kerbein said that section of the law could be challenged in court.

Individuals under the new law aren’t required to make a complaint to an employer before taking the matter to court. If, for example, the harassment occurs between employees outside of work and the employee fails to report it, the employer could still be liable, Kerbein said. “Employers have lost an important affirmative defense under this bill,” he said.

“We support a workplace free from harassment, the vast majority of employers do that. The ones that don’t have to be held accountable,” Kerbein said. “Our concern is looking out for employers that are doing everything right and in spite of that could be on the hook substantially.”

To contact the reporter on this story: Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com