New York State has made many changes to laws that prohibit unlawful sexual harassment in the workplace. We thought it would be helpful to identify the most important changes in one article.
Here’s what you need to know:
- Employers must have a written sexual harassment prevention policy and complaint form. The State has prepared a model sexual harassment prevention policy and complaint form.
- Employers must provide annual sexual harassment prevention training for all employees. The State has prepared a model prevention training program and offers other free resources like a training video and training case studies. This year’s training must be completed by October 9, 2020.
- Employers must give new employees a sexual harassment prevention “notice” when they are hired and must give this notice to ALL employees at the annual sexual harassment prevention training program. The State has prepared a model notice .
- No mandatory arbitration of sexual harassment claims. Employers cannot impose mandatory arbitration clauses to “resolve any allegations or claims of an unlawful discriminatory practice of sexual harassment” except where inconsistent with federal law.
- Employers may be held liable for sexual harassment of non-employees (e.g., contractors, vendors, and consultants). Employers are liable if they knew or should have known that the non-employee was subjected to sexual harassment at the employer’s workplace and failed to take appropriate corrective action.
- An employer cannot require an employee to stay silent as a condition of settling a sexual harassment claim. Parties to a settlement are prohibited from including terms that would “prevent the disclosure of the underlying facts and circumstances” related to such claim unless the alleged victim is the one who wants those terms. Any agreed upon confidentiality provisions must apply to both parties. Further, an alleged victim must be given 21 days to consider whether to accept the proposed confidentiality language, and then seven days to revoke his or her acceptance of it. Any agreed upon confidentiality provisions only become effective after the seven-day revocation period has expired.
- An employee who agrees to stay silent to settle a sexual harassment claim still has other legal rights. Non-disclosure clauses that prevent “the disclosure of factual information related to any future claim of discrimination” must include plain language confirming that an employee may: (a) file a harassment or discrimination complaint with a government law enforcement agency; (b) testify or otherwise participate in a government investigation; and (c) disclose facts necessary to apply for and receive unemployment insurance benefits, Medicaid, or other public benefits.
- Employees will have more time to file a complaint. Beginning August 12, 2020, employees may file a charge of unlawful sexual harassment with the salient law enforcement agency (New York State Division of Human Rights or “DHR”) within three years form the date of the action(s) they want to challenge. Currently, the deadline for an employee to file such a charge is one year from the date of the event(s) they want to challenge.
- It is easier to employees to prove unlawful sexual harassment. An employer will be liable for harassing conduct motivated by sex if it rises above what a reasonable person would consider “petty slights or trivial inconveniences.” The employee no longer has to prove that the challenged conduct was “severe” or “pervasive.”
- An important defense for employers no longer exists. In the past, an employer could defeat a sexual harassment claim if: (a) it attempted to prevent and correct the harassing conduct through, for example, an effective internal complaint procedure; and (b) the employee unreasonably failed to take advantage of it. Now, if an employee did not make an internal complaint about harassment it is not determinative of whether the employer is liable.
- Employers may be liable for punitive (aka punishment) damages. To be entitled to punitive damages, an employee must show that their employer’s actions were “evil or outrageous.” This is a difficult standard to meet.
- Employers are liable for legal fees incurred by employees who prevail in a legal action against them. Previously, the Judge had discretion whether to award legal fees to an employee who prevailed. Now, the Judge has to award these fees.
- Employees are liable for legal fees incurred by employers IF it is established that the employee’s case was “frivolous.” This is a difficult standard to meet.
We encourage you to visit the State’s website for more information. Please contact us if we can help.