Will New York Revise Sexual Harassment Prevention Standards?

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Will New York Revise Sexual Harassment Prevention Standards?

Sexual harassment has been unlawful for a long time, but the #MeToo movement has brought attention to its prevalence in today's workplace. To combat the issue, New York lawmakers are examining ways to strengthen their harassment prevention laws and provide more resources for employers and workers. 

Currently, sexual harassment laws in New York mirror the federal standard, which puts a high burden on the employee to establish a sexual harassment claim, said Brooke Schneider, an attorney with Withers Bergman in New York City. The harassment has to be severe or pervasive enough to be actionable under the law. One incident sometimes can be enough to meet this standard—particularly if there is unwelcome touching involved—but verbal comments usually need to be more frequent to be actionable.

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

Senate Bill S7193, which was introduced by Sen. Liz Krueger (D-Manhattan) in January, would amend the law to make sexual harassment and sex discrimination unlawful regardless of the severity or pervasiveness of the conduct—as long as the perpetrator was motivated in whole or part by the employee's gender.

Among other things, the bill would require the New York Department of Labor to draft a model sexual harassment policy and model prevention training for employees. The goal is for all employers to have easier access to resources to prevent sexual harassment in the workplace, according to the bill.

Another bill, Senate Bill S6382A, would void most confidentially agreements that are attached to sexual harassment claim settlements.

Regardless of the legal standards, Schneider noted that it's important for employers to take action before an incident escalates so that the matter doesn't result in a lawsuit. That often requires everyone to communicate so that the issue can be fairly addressed. Employers should create a comfortable environment in which employees feel that they can come forward and speak up about any issues they are dealing with in the workplace, she said. 

Women's Initiative

Sexual harassment allegations in 2017 against politicians, business executives and powerful men in Hollywood put workplace misconduct and inequities in the spotlight. Beyond legal remedies, some professional associations are looking for ways to provide women with more overall resources in the workplace.  

For example, Lauren Wachtler, an attorney with Phillips Nizer in New York City, is part of the Task Force on Women's Initiatives for the 3,000-member Commercial and Federal Litigation Section of the New York State Bar.

Wachtler is a former chair for the state bar's commercial and federal litigation section. "Every year we have a dinner for all the former chairs. Two years ago, I looked around a table with 30 people and saw that only seven were women."

Those women formed the taskforce and, among other things, put together the report "If Not Now When: Achieving Equality for Women Attorneys in the Courtroom and in ADR," which aims to promote women attorneys in their firms, in the courtroom and in alternative dispute resolution (ADR) forums, such as arbitration and mediation.

"Unfortunately, the gender gap in the courtroom and in ADR has persisted even decades after women have comprised half of all law school graduates. … The federal and state courts in New York are not exempt from this phenomenon," the report states.

"We need to give women the tools to be successful in the courtroom, in ADR and in their careers in litigation," Wachtler said in an interview with SHRM Online.

She noted that the recent media attention on sexual harassment has convinced people to discuss experiences and events that they were previously too afraid to share.

"These issues need to be addressed in a measured way," she said. "Employers cannot turn a blind eye to poor behavior, and they need to create a better work environment for everyone."

Additional Efforts

New York Attorney General Eric Schneiderman has provided an updated "know your rights" document for victims of sexual harassment. The guidance provides information about support hotlines and how to take legal action.

"In recent months, we've begun a long-overdue reckoning with the systemic failure of many institutions to protect women and all victims of sexual harassment," Schneiderman said in a press statement. "This guidance will help New Yorkers understand their rights and their options when it comes to sexual harassment in the workplace."

Manhattan District Attorney Cy Vance Jr. has also taken steps to combat workplace sexual misconduct. He announced in January that 15 assistant district attorneys and social workers would be assigned to a team that will investigate and prosecute cases of sexual violence at work.

"When an act of work-related sexual misconduct constitutes a crime, it is not enough that the abuser loses his job or his industry cachet—justice demands, and survivors deserve, that criminal abusers be held accountable in court," Vance said in a press statement.

 

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