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.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.