New York Governor Approves Workplace Harassment Prevention Measures

 

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New York Gov. Andrew Cuomo has signed into law a bill that would strengthen workplace harassment protections for employees.

Under the new law, discriminatory conduct no longer has to be "severe or pervasive" to be unlawful. Now, anything more than "petty slights and trivial inconveniences" could be considered a violation of state anti-harassment law.

Additionally, an employer can be held liable under the new law even if the employee didn't follow the employer's internal complaint procedures.

"There has been an ongoing, persistent culture of sexual harassment, assault and discrimination in the workplace, and now it is time to act," Cuomo said in a statement.

We've rounded up the latest news on this topic from SHRM Online and other trusted outlets.

Eliminating the Farragher-Ellerth Defense

For claims brought under New York law, employers can no longer use the so-called Farragher-Ellerth defense, under which an employer can avoid liability for a supervisor's misconduct if the employee fails to follow the company's harassment reporting procedures. The legislation will also expand the state's 2018 ban on mandatory arbitration clauses in sexual harassment settlements to apply to all discrimination claims.

(Jackson Lewis)

Mixed Reactions to New Law

Cuomo called the "severe or pervasive" harassment standard "absurd" and other employee advocates called the old standard unfair to victims. Frank Kerbein, director of the Center for Human Resources at the Business Council of New York State, however, said the new law will result in more legal claims for employers that are already working to address the issue. "We're concerned about being civilly liable as an employer even if we do everything correctly, as prescribed by law, and work diligently to create an environment free from harassment," he said.

(Wall Street Journal)

[SHRM Online HR Q&A: What are the different types of sexual harassment?]

Expanded Equal Pay Protections

In 2019, New York lawmakers also expanded equal pay protections to employees of all classes and characteristics covered by the state's anti-discrimination law. This means that in addition to a sex-based equal-pay lawsuit, pay discrimination claims can be based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, disability, and other recognized classes. Additionally, lawmakers approved a bill prohibiting employers from asking applicants about their salary histories. 

(SHRM Online)

New York Employers Must Provide Sexual-Harassment Training

Employers should note that New York legislators also passed a number of initiatives in 2018 to address widespread allegations of sexual harassment in the workplace. Significantly, employers will need to provide sexual-harassment training to all workers. Effective Oct. 9, 2018, New York employers had to establish an annual sexual-harassment training program, and the first training must be completed by Oct. 9, 2019.

(SHRM Online)

Quiz: Is It Sexual Harassment?

How well do you understand which behaviors warrant your attention? Test your knowledge by assessing whether the following statements about sexual harassment are true or false.

(SHRM Online)

Visit SHRM's resource page on workplace harassment

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