For any company doing business in New York, this coming November 24 represents more than just Thanksgiving 2022: it will also initiate a one-year period in which nearly any person who claims to have suffered sexual abuse at any time in the past (so long as they were over 18 when the abuse occurred) will be able to sue their abusers, as well as any other person or entity they allege was responsible, in New York civil court. For this reason, any company with a longstanding presence in the state of New York, a significant number of employees here, or especially both should take certain steps now to best protect itself against what will very likely be a large influx of sexual abuse and/or sexual harassment litigation. Importantly, this will include claims for negligent hire and negligent retention and supervision, and may also include claims under the New York State and New York City Human Rights Laws.
The Adult Survivors Act, CPLR § 214-j (the "ASA"), was signed into law last May. For a 12-month window beginning on November 24, 2022, the ASA will revive all civil claims based on criminal sexual abuse committed against adult victims that were not brought within the time period required by the applicable statute of limitations. Specifically, the ASA opens the books for any previously unlitigated claim "brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense." This includes claims that had previously been dismissed on statute of limitations grounds.
To define "sexual offense" the ASA looks largely to Article 130 of the New York Penal Code, which means that ASA claims can be predicated on any of a large category of offenses ranging from forcible touching to sexual assault to rape. The ASA covers essentially any form of nonconsensual sexual physical contact, and can therefore form the basis for workplace sexual harassment claims, provided they are pleaded in such a way as to include acts constituting sexual misconduct, and not just verbal abuse. In other words, claims of sexual harassment or hostile work environment if based on verbal conduct are not revived, but if a claim can be cast as a criminal sexual act it can go forward under the ASA.
The ASA is modeled on the Child Victims Act, CPLR § 214-g ("CVA"), that New York passed in 2019. The CVA revived unlitigated child sexual abuse claims in the same way that the ASA will for adult claims, and it is estimated that the CVA resulted in over 10,000 lawsuits filed within its revival window, which was extended from one year to two years. It is entirely possible that the ASA will generate far more claims than the CVA did: while most CVA claims were limited to entities that work with children (such as schools or other institutions in the not-for-profit space), the ASA takes direct aim at corporate America, and its more lucrative coffers.
The ASA could have monumental implications for any company with a large and/or longstanding workforce anywhere in the state of New York.
For one, such companies could face claims based on incidents that are alleged to have happened decades ago whether or not a complaint was made at the time of the alleged abuse. This means that any current or former employee can assert a claim against any current or former co-worker and the company that employed them for decades-old conduct. Claims like these will present significant evidentiary challenges, both in terms of marshaling relevant witness testimony (assuming any such witnesses are still available and remember relevant facts) and with respect to gathering what documentary evidence may have been preserved over a long period of time. Litigants in this area can also be expected to summon competing expert testimony on topics such as the psychological processing of sexual assault, as well as its lasting effects. An ASA claim will also require the defendant company to determine what notice it may have had as to the propensity of an alleged predator to engage in sexual misconduct, based not on today's standards but on those applicable at the time the abuse allegedly occurred.
In addition, the insurance ramifications of the ASA will likely be significant, as both policyholders and insurers may have to search through records dating back 50 years or more to locate and analyze applicable policies and make coverage determinations. Coverage determinations have been a huge stumbling block in the prosecution and resolution of CVA cases.
At the broadest level, ASA actions, many of which (if the CVA is any indication) may be brought by anonymous plaintiffs, might threaten significant reputational harm to defendant companies-to say nothing of their exposure to compensatory damages, punitive damages, and attorneys' fees, all of which could be recoverable under the ASA depending on the substance of the claims asserted.
Any company or organization that may have liability exposure because of the ASA-and for the reasons discussed above, this is very likely a large number of entities-should strongly consider taking several actions as soon as possible, if it has not done so yet:
- Take stock of company history and potential claims. If you are aware of prior lawsuits alleging claims that involved conduct that can now be recast as a criminal sexual act (regardless of how the matter was resolved in the first instance) and be prepared for other alleged victims to come forward now.
- Consider what information about prior lawsuits or allegations of misconduct are in the public domain. This information may be used by alleged victims coming forward and their lawyers to assert claims today. Capture that information and advise prior counsel and other third parties to preserve any files they may have which may be relevant to the defense of such actions.
- Identify key personnel within the organization that have institutional knowledge and proactively search for and compile relevant "historical" documents. This includes not only internal records of particular sexual assault or harassment complaints or incidents, but also any internal investigations, any records maintained by your human resources department and/or general counsel's office, and any disclosures that may have been made to the company's auditors or board of directors.
- Take stock of the document retention policies and procedures that you currently have in place, and adjust them (in particular any routine document destruction policies) to ensure that all records that may be material to sexual abuse or sexual harassment litigation are preserved.
- Locate past employee handbooks and training materials, company-wide or localized policies, and any other documents that speak to your company's efforts to protect its employees from abuse or harassment. While you are looking back at past practices, look forward as well to ensure that your current policies and procedures are (at a minimum) in full compliance with sexual harassment laws and regulations, and (ideally) at the leading edge of best industry practices in this area. Ensure that your employees know your company has processes for the reporting and sensitive handling of sexual abuse and/or harassment complaints.
- Track down and set aside any documentation regarding present and historical insurance policies that may provide coverage for claims asserted under the ASA. Be mindful of any notice provisions in those policies so that you can most effectively protect coverage rights.
- Identify outside advisors and attorneys you may consult in the event one or more ASA claims are filed against you, including litigators who understand the issues unique to defending decades-old claims. Actions brought under the ASA will receive a trial preference. See CPLR § 3403(a)(7). In addition, the ASA requires the Chief Administrative Judge to "promulgate rules for the timely adjudication of such claims." Law § 219-e. If the CVA is any indication, this may mean that ASA cases will proceed under Case Management Orders which will be specifically created for these cases and which might well depart from how civil cases normally proceed in the courts of New York.
Cases brought under the ASA will present unique challenges and require special consideration. Both the cost of litigation and the cost of settlements in this pro-victim environment can be high. In certain circumstances early resolution may be a practical consideration. In others, an aggressive defense will be necessary. Taking these steps now will help ease the burden on your company and provide for maximum flexibility in the largely uncharted territory into which the ASA stands poised to take many New York employers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.