New York employers should be aware of a significant change in the legal standard for proving sexual harassment in the workplace. A new bill, which amends the New York State Human Rights Law (NYSHRL), increases protections for employees who have been sexually harassed. New York Governor Andrew Cuomo signed the new legislation on August 12, 2019.
Under current law, employees are required to prove that alleged sexual harassment was “severe or pervasive” in order to hold perpetrators — and employers — accountable for such behavior. Under this standard, courts often dismiss claims that offensive behavior, by itself, was not “severe” enough, or that the harassment did not occur often enough to be “pervasive.” This high standard — set forth by the Supreme Court in 1986 — results in rulings that inappropriate comments or even groping are insufficiently hostile to trigger liability, thus allowing for some amount of discriminatory harassment in the workplace.\
New law removes “severe or pervasive” standard of harassment
The new law, however, requires that courts interpret the NYSHRL liberally and narrowly construe exceptions and exemptions. Courts may find employers liable where harassment “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership [in a protected category].” Employers have an affirmative defense only where they can show that the alleged harassment was a “petty slight or trivial inconvenience,” ensuring employers will not be liable for behavior one could not reasonably consider harassment.
Key changes increase protections for employees
In addition to eliminating this legal barrier to targets of workplace harassment, the amendment contains a number of other significant changes:
- Employers must ensure anti-harassment training is provided in multiple languages — in English and the employee’s primary language.
- Sex discrimination and harassment are treated the same as other forms of discrimination and harassment.
- An employer can be liable for harassment even if the employee did not complain directly to the employer prior to filing suit, thus eliminating a key defense employers commonly use to reduce their liability.
- Protection against discrimination and harassment will extend to domestic workers, independent contractors, subcontractors, vendors, consultants and other professional service providers.
- Employers may not use non-disclosure agreements to bar someone from speaking out against discrimination.
- Employers may face punitive damages, as well as payment of attorney fees for victims who prove their cases.
- Employers are responsible for the conduct of their supervisors.
- The statute of limitations for sexual harassment claims will extend from one year to three years.
- The definition of “employer” is expanded to include employers with any number of employees within New York State, whereas current law applies only to employers with four or more employees.
Changes could lead to an increase in claims and damages
These amendments — particularly NYSHRL’s elimination of the “severe and pervasive” standard — may lead to an increase in sexual harassment, discrimination and retaliation claims, as well as potentially larger damages from such claims. Thus, amidst the #MeToo environment and Governor Cuomo’s promise to sign the proposed legislation, all employers in New York have a strong incentive to implement a comprehensive harassment prevention program.
New York employers should be aware of the impact of the new workplace harassment law and ensure their training, policies and procedures comply with the new requirements. In addition, employers should have plans well underway to meet the October 9, 2019 deadline for all employers to provide employees with sexual harassment training.