NY New Sexual Harassment Bill Is a Wake-Up Call for HR and Risk Compliance

If you haven’t heard yet the New York state legislature just passed an extensive rewrite of its state human rights law for the purpose of abolishing harassment in the workplace. Whether the goal will be achieved is unknown, but almost certainly the result will be a significant increase in charges with the New York State Division of Human Rights as well as lawsuits against companies seeking compensation for unlawful harassment. And unlawful harassment in NY is nearly certain to become a lot easier to prove once it becomes law.   

 It started with #MeToo nearly two years ago, but, following extensive lobbying efforts from inside the state capitol and from outside groups, NY entertained a significant change to its harassment law for the first time since Bill Clinton was elected President. And what a change it is. Here are the key elements:

• Watering down the definition of unlawful harassment to include harassment against a covered individual “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” Employees will now have to prove only that they were subjected to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories.”

• Currently most states, and the federal standard adopted by courts, require that employees prove the (what they call) harassment they were subjected to was either severe or pervasive. This standard is high and courts routinely dismiss lawsuits early before they can get to a jury because employees cannot meet this level of proof. If you’re not a lawyer, or have not been sued for harassment, this might not sound like a big change, but it is. It will almost certainly result in a significant increase of the percentage of cases that go to trial.  

• Limiting an employer’s use of the affirmative defense known as the Faragher/Ellerth defense where employers argue they are not liable for harassment from a co-worker where the employee did not report the harassment to the company (typically management/HR).

• Allowing employees three years to bring a claim of harassment under NY law, versus the current one year limitations period.

• Requiring employers to provide employees with their sexual harassment policy and training materials at the time of hire and, again, when they provide mandatory training to employees. The state agency is directed to prepare model notices employers may use to satisfy this notice requirement. Employers in NY have been required since 2018 to have sexual harassment policies and provide mandatory training for employees.  

 HR professionals and risk managers should take note of what New York has done because it is almost certain that the tenets of this legislation will be lobbied for passage in other states. Minnesota has already debated these provisions in the past two legislative sessions, and it would not be surprising for Minnesota to go the way of New York in the coming years. Other states are certain to follow New York’s lead on this subject. 

 If you have any questions or needs regarding harassment prevention policies, training and strategies please contact us at 651-389-5000 to discuss with an attorney.

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