I’ve heard it so many times from business owners and supervisors: “We’re like a family here—we all joke around. No one gets offended.” Sounds like a wonderful workplace environment—and a very risky one.
In August 2019, Governor Andrew M. Cuomo signed into law legislation which made sweeping changes to previously existing regulations regarding sexual harassment and discrimination. If you are an employer in New York, your responsibilities relating to sexual harassment prevention have now expanded significantly.
Some key developments you should be aware of:
- Lower Burden of Proof. Previously, in order to prevail on a harassment claim, one had to demonstrate that the harassing conduct was so “severe and pervasive” that it altered the conditions of his/her employment. The bar is much lower now, and ANY sexual harassment will be unlawful, “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.”
- Affirmative Defense No Longer Available. If the employer had a sexual harassment policy with a complaint-reporting procedure, the employer could previously avoid liability by demonstrating that the complaining employee did not utilize this procedure, and did not file a workplace complaint. This defense is no longer available. Thus, the employer may still be held liable, even if the employee never complained of the harassing conduct.
- Punitive Damages. Plaintiffs/Claimants can now be awarded punitive damages, as well as attorneys’ fees, if they prevail.
- Statute of Limitations Extended. Effective August 12, 2020, the statute of limitations in which to file a harassment complaint with the New York State Division of Human Rights is extended from one to three years.
What does all this mean?
It is now much easier for employees to prevail on a claim of harassment, and they will have substantially longer to do it.
Why should you care?
You’ve likely read about high-profile cases against media mogul Harvey Weinstein, former head of CBS Les Moonves, and television personality Matt Lauer, to name a few. And maybe you’ve heard that, just a few weeks ago on February 12, a New Jersey jury ordered PNC Bank to pay a former employee $2.4 million for failing to protect her from the harassing conduct of a customer. But the issue extends far beyond what’s reported on the front page. In fact, according to a recent study conducted by HR Acuity, 53% of employers polled have reported an increase in sexual harassment claims.
Here are several examples that may hit a little closer to home:
- February 2020 – A Personal Trainer at an LA Fitness in Lindenhurst, NY filed a complaint with the New York State Division of Human Rights, claiming a pattern of harassing behavior by her boss. The complaint is currently being investigated.
- January 2020 – The principal owner of The Spotted Pig restaurant in Manhattan agreed to pay $240,000, plus a share of future profits, to settle harassment claims brought by 11 employees. The restaurant closed at the end of January.
- June 2019 – Three former employees filed a lawsuit against Long Island dentist Charles Hertzog and National Dental, a local chain of dental offices, for alleged sexual harassment. A fourth employee also filed suit in March 2019. The cases are pending.
- April 2019 – Dr. Brian Gilchrist, former Chief of Pediatric Surgery at NYU Winthrop Hospital in Mineola, NY stepped down from his position after sexual harassment complaints from his former job at Bronx-Lebanon Hospital became public.
Now, more than ever, it is CRITICAL that employers have—and follow—a comprehensive, written harassment and discrimination policy that complies with the requirements of New York law. And don’t forget—ALL employers in New York State are now required to provide anti-harassment training to employees annually. Employers should give thought as to when their training for 2020 will take place.
For more information on New York harassment/discrimination law, or annual training requirements, contact Ron Rolleri at Ron@RolleriLaw.com.
