Clarifying the Sexual Harassment Standard in New York

There has been a lot of reporting lately on what the legal standard is for sexual harassment claims in New York in light of the recent allegations of three women against Governor Andrew Cuomo. 
Matt Miller and James O’Connor clarify the current state of New York law in this area.

There are two primary laws at play here.  At the federal level it is Title VII of the Civil Rights Act of 1964 (“Title VII”).  At the state level, it is the New York State Human Rights Law (“HRL”).  Both laws protect employees from sexual harassment, among other things.  Of course, sexual harassment can take many forms, including conduct such as offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, unwanted advances, and interference with an employee’s ability to do his or her job.

Until recently, these types of claims under both New York State and federal law were judged by the same standard, which required plaintiffs to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently “severe or pervasive” to alter the conditions of the victim’s employment and create an abusive working environment.  This remains the case for plaintiffs that claim a violation of federal law.  But, under the HRL in New York, the standard has been different since 2019.

First, as of August 12, 2019, courts and the NYS Division of Human Rights (“DHR”) are required to construe the HRL liberally, regardless of the federal civil rights law and regardless of any interpretation of similar language used in the federal civil rights law.  Even further, any exceptions or exemptions (i.e., employer defenses) from the HRL must “be construed narrowly in order to maximize deterrence of discriminatory conduct.”  This change is significant and puts plaintiffs in a position of power from the start under state law.

Second, as of October 11, 2019, under the HRL in New York, it is unlawful to subject someone to sexual harassment regardless of whether the harassment would be considered “severe or pervasive” under prior state or federal precedent applied to harassment claims.  It is important to note that to the extent that a New York employee complains of sexually harassing conduct that is alleged to have taken place before October 11, 2019, then the “severe or pervasive” standard will still be applied.  But if the conduct post-dated the amendment of the HRL, plaintiffs will have a much easier time establishing a violation of state law.

The landscape also changed in other ways under the HRL as of October of 2019, making it easier for plaintiffs and more difficult for defendants:

  • Employers cannot assert a defense that it exercised reasonable care to prevent and promptly correct sexually harassing behaviors.
  • Employers cannot assert a defense that the employee unreasonably failed to take advantage of any preventative or corrective opportunities he or she was provided. 
  • Employers cannot escape liability even if the alleged victim fails to report the harassment.
  • Employers cannot escape liability even if the alleged victim refuses to participate in an internal investigation into his or her complaints.
  • Non-disclosure agreements related to past or present claims of harassment and discrimination that would prevent the disclosure of the underlying facts and circumstances of the claim are unlawful and void, unless the plaintiff prefers to sign such agreement.  This is designed to prevent the proverbial “hush money” circumstance and to allow victims to tell their story.  Other terms of settlements or releases related to past or present claims can remain confidential.

Conclusion

When the alleged sexually harassing conduct took place is critical in order to determine the legal standard applicable to a victim’s claim under
New York law.  If you have any questions on how this relates specifically to your business, Matt Miller, Jim O’Connor, or any member of the Rupp Baase Employment Law Team is available to help.

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