By Shaloni Pinto and Aimee Christianson
{Read in 4 minutes} With the passage of New York Senate Bill 7848A, the state will make it easier for workers to bring sexual harassment claims to court. Aimed to prevent sexual harassment in the workplace, the bill will amend the general business law to limit the coverage of mandatory arbitration clauses in relation to sexual harassment and will also amend the labor law to promote the prevention of sexual harassment.
S7848A weakens non-disclosure agreements (NDAs) relating to claims of harassment, meaning that those who signed these NDAs may be able to take part in a harassment investigation. The bill goes further to protect workers from NDAs, requiring that an employee must be notified that they can still talk to a reporting agency if they sign NDA clauses which cover future claims of discrimination.
The Federal Law, Title VII of the Civil Rights Act, prohibits discrimination on the basis of sex. While sexual harassment is an act of sex discrimination within Title VII, a plaintiff must generally show that the harassment was “severe or pervasive” to have a valid claim in court.
Senate Bill 7848A will change this legal threshold for NY State. Now, plaintiffs will not have to meet the “severe or pervasive” standard to have a viable claim in court. This will likely lead to an increase in sexual harassment cases being brought in New York’s state courts rather than Federal Courts because of the lower threshold required in New York. Moreover, the number of claims may increase because the filing period to raise the claim with the NYS Division of Human Rights will also be extended from one year to three years, thereby allowing more victims to obtain agency relief than having to bring state court proceedings.
The new law will also significantly limit the employer’s Faragher/Ellerth defense in state court. Named after two Supreme Court cases Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Faragher/Ellerth affirmative defense could relieve employers of liability for sexual harassment if they did not take a “tangible employment action” because an employee failed to utilize a complaint process offered by the employer. Many employers succeeded in defending harassment claims when the harasser is a co-worker by providing evidence that the victim had the opportunity to complain through various methods provided by the employer.
After New York Senate Bill 7848A takes effect, this defense no longer alleviates the employer of liability for workplace harassment. Simply put, if an employee is sexually harassed at the job, the employer can no longer get off the hook by showing the victim failed to complain. This is a significant change in the law that will surely provide victims with a more unobstructed avenue of recourse against an employer, big or small, thereby forcing an employer to put their money where their mouth is when it comes to their policies against harassment on the job.
Following California and Delaware, New York is the third state to abolish the “severe or pervasive” threshold. New York’s law specifically focusing on workplace sexual harassment was introduced in the wake of the #MeToo movement, aimed at addressing the rampant sex discrimination and harassment in the workplace and beyond.
