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New York Harassment Law Is a Game Changer

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Last year, when I wrote about the new laws that had been passed by the New York State Assembly to combat sexual harassment, I was largely complimentary. After all, requiring employers to provide interactive training in harassment training was something that I had been recommending since I became an employment lawyer many years ago. While I was more ambivalent about some of the other provisions (prohibiting certain non-disclosure provisions and arbitration agreements), the basic principles of sexual harassment law remained the same.

Apparently, the New York State Assembly was just getting its feet wet. Season 2 of “New York Takes on ‘Me-Too’” pretty much overhauls the legal foundations of harassment law as we have known it for the last 30 years. Once the bill is signed by Governor Cuomo — which he has indicated he will — New York employees who choose to file claims under New York law instead of Title VII, will no longer have to show that the alleged harassment they have suffered is sufficiently “severe or pervasive” to alter the terms or conditions of their employment. In the past, an employee who complained about sporadic use of abusive language or an occasional gender-related joke would likely see his or her complaint dismissed at the summary judgment stage. Going forward, New York courts are likely to allow those claims to be tried.

New York has also eliminated the affirmative defense that the employee cannot recover damages if the employer took reasonable care to prevent and to correct harassment and the employee did not reasonably take advantage of the employer’s established reporting mechanisms. Going forward, even if an employee has a robust harassment prevention program that encourages reporting, an employee could still sue his or her employer although he never complained to anyone. The new law also extends the statute of limitations to three years.

So what should New York employers do in response to these new laws? First, since last year’s training requirement required employers to provide information concerning their legal rights, you should make sure your training materials accurately reflect the current law. For example, you would want to revise a PowerPoint slide that discussed the “severe or pervasive” standard. Second, employers will need to be more proactive — and less tolerant — when addressing minor behavior infractions — e.g., a joke about gender that was not intended to offend — that would not be considered harassment under federal law but could now be actionable. Finally, since employees will no longer be required to take advantage of the employer’s reporting mechanisms, supervisors and human resources managers will need to be more alert to what is happening in the workplace by keeping an open door and regularly engaging employees in conversations about how things are going in the workplace.

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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.