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We've been talking #MeToo and sexual harassment allegations and cases for years now, but actual change is starting to take shape. On June 20, 2019, the last day of the New York State Assembly’s legislative session, both the New York State Assembly and the New York State Senate passed a sweeping legislative package of new laws applying to sexual harassment, discrimination, and retaliation within workplaces. The package is wide-reaching and detailed, including such measures as changing the standard of proof for persons alleging sexual harassment, banning nondisclosure agreements for victims of sexual harassment, and extending the statute of limitations for persons making sexual harassment complaints.
Perhaps the most important detail of the package is the changing of the standard that is required for an employee to file a lawsuit against an employer when claiming sexual harassment. In what is probably surprising to many people, New York State, historically a bastion of liberal and progressive politics, up until just last week had a standard that required employees to prove that the harassing behavior that they had been subjected to be “severe or pervasive” in order to proceed with a lawsuit or a complaint with a state/city agency. That's right: the accuser was guilty until proven otherwise!
While one time is too many, most employment lawyers and legal scholars agree that under this former “severe and pervasive” standard, it was impossible for employees to proceed with a lawsuit if they had been harassed only once or twice. One can only imagine what the real-life effect was of this antiquated standard, and how it affected employees throughout the state of New York during its tenure. Under this old standard, then, if an employee’s supervisor had perhaps fondled their breast once, or make inappropriate remarks twice about their appearance—tough luck. The new anti-sexual harassment legislation, spearheaded by New York State Senator Alessandra Biaggi, forces employers to address any and all forms of harassment in the workplace—one incident alone is enough to provide a basis for an employee to file a lawsuit or make a complaint with a government agency. Governor Andrew Cuomo, whom is expecting to sign the legislation into law any day now, commented on the new standard that is to be applied to sexual harassment incidents, stating, “Part of [our] agenda was aimed at addressing the absurd legal standard that says sexual harassment in the workplace needs to be ‘severe or pervasive’ in order for a victim to bring a claim. Under the status quo, sporadic sexual harassment is permissible as long as it is not pervasive — that’s unacceptable and we are changing it.”
The new laws provide a host of other provisions, all of which serve to further protect employees in workplaces. Those provisions include but are not limited to: a ban against non-disclosure agreements to bar an employee from speaking out against discrimination, a change of the statute of limitations to three years for persons bringing sexual harassment complaints under the Human Rights Law, and a total ban on mandatory arbitration for discrimination claims. The new laws also create an easier process by which employees claiming discrimination can have their attorney fees reimbursed by the offending employer. Also of note is that employers are required to provide their employees with a notice of that workplaces’ sexual harassment policies in the employees’ primary language. In yet another nod to how momentous the new legislation is, the new laws apply to any and all employers in New York State, no matter how small.
When State Senator Alessandra Biaggi spoke about this massive sea change for New York State employers and employees, she stated, “Today’s victory is a culmination of the blood, sweat, and tears of courageous survivors, fierce advocates, and dedicated lawmakers.” New York State employees now look towards a workplace of the future, in which they will likely reap the benefits of these groundbreaking, greatly increased work protections, which were crafted with an eye towards creating a safer and more inclusive workplace for all employees. Most legal scholars and commentators, when speaking about the new laws, have marveled at the nature of these laws, in that they employ much more of a punitive “stick” approach than a gentle “carrot” incentive, with employers having greatly increased liability for creating or allowing workplaces in which sexual harassment and discrimination are allowed.
New York State employers should consider themselves officially put on notice, and other states should get prepared as well.
