Grading New York's New Laws to Combat Sexual Harassment
While employers and their lawyers love to demonize
California’s employment laws, I have always thought that California’s requirement
that all supervisors and managers receive interactive training in harassment
prevention was a pretty good idea, although requiring two hours of training is probably overkill.
I have also been surprised that only
a few other states (e.g., Maine, Connecticut) have chosen to copy California
and require similar training. Starting this year, however, both New York City and
New York State will require employers to provide harassment training to all
employees. My only criticism is that the City and State requirements are not
completely consistent, which will present some challenges for human resources
managers seeking to implement the new requirements. Except for this quibble, I
think this is a smart thing to do and would urge all of my clients to do this
whether or not it is required in your state.
I am much more ambivalent about New
York’s new law prohibiting employers from including a non-disclosure provision
in settlement of sexual harassment claims unless the employee requests the provision
be included. This requirement is likely a response to recent news stories about
certain companies that repeatedly settled complaints involving serial harassers
who remained at their companies. One could easily argue that silencing victims
in those situations went against the public interest, because others continued
to be victimized by the harassers. A blanket prohibition, however, fails to
account for the complexities of these cases; employers often resolve cases
where the evidence is not so clear. It may also result in fewer settlements.
Take a common example: an employee makes an uncorroborated complaint of
harassment while being counseled about her poor performance. Suspicious of the
accusations, the employer decides that it is best to achieve closure with the
not-so-good employee. If such disputes cannot be settled confidentially, New
York employers may choose to litigate.
Finally, under New York law,
employers will no longer be able to compel employees to arbitrate claims of
sexual harassment. I am afraid that this provision gets a big “F” because it conflicts
directly with the Federal Arbitration Act and is probably not enforceable,
unless the United States Congress decides to amend the FAA in the near future.