This is the second in a series of blog posts concerning a suite of legislation passed last week by New York State legislators. Yesterday, we discussed a Bill that will change how nondisclosure provisions are used in the context of settlement and separation agreements. Today, we look at a series of measures that will change how harassment claims are litigated in New York State (although many of these changes should already be familiar to New York City employers).
Perhaps most notably, the new laws lower the standard for proving claims of workplace harassment under New York State's anti-discrimination law. Currently, under both federal and New York State law, an employee-plaintiff alleging harassment must establish that the conduct at issue was "severe or pervasive." Without this showing, the employee cannot succeed in proving their claim of harassment.
Under the new law, however, harassment will be deemed unlawful "regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims." In other words, New York State will no longer recognize the longstanding "severe or pervasive" standard. As a slight consolation to the business community, the new laws do provide an affirmative defense to harassment claims if the employer can show that "the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences." These changes align New York State law with New York City law, which eliminated the "severe or pervasive" standard and adopted the "petty slights or trivial inconveniences" affirmative defense years ago.
This is not the only critical change, however, to the existing framework for litigating harassment claims. In addition to lowering the threshold for proving harassment, the new laws also eliminate the ability to invoke the so-called "Faragher-Ellerth" defense to harassment claims under the New York State anti-discrimination law. The "Faragher-Ellerth" defense has, for years, allowed employers to avoid harassment-related liability by maintaining policies and practices to prevent and correct harassing behavior and by showing, in addition, that the employee-plaintiff unreasonably failed to take advantage of such corrective opportunities. New York has now eliminated this oft-cited and relied upon defense. This change, too, brings New York State law into line with New York City law, under which the Faragher-Ellerth defense has been unavailable since 2010.
For New York employers – especially those outside of New York City – these changes will likely alter the approach to lawsuits and administrative agency complaints, and perhaps even internal complaints, alleging sexual harassment. The changes will also likely alter some of the fundamental concepts utilized by employers and their human resource departments in creating policies and training employees. Employers should therefore familiarize themselves with these changes immediately, and update their policies and practices as necessary.
This article is presented for informational purposes only and is not intended to constitute legal advice.
