The New York State Assembly and Senate passed a bill on June 19, 2019 that addresses workplace harassment and provides more protection for victims of harassment. The bill removes a standard in New York that required workplace harassment to be “severe or pervasive” in order for employees to state a claim against their employer. Additionally, the bill removes employers’ ability to use nondisclosure agreements to resolve claims of discrimination, harassment, and retaliation. Further, it revokes an employer’s affirmative defense, the Faragher/Ellerth defense, protecting the employer that the victim employee did not properly the employer’s reporting procedures. The bill also extends the statute of limitations for complaints to three years and extends protection for all protected classes, rather than just sex, included in state law.
Prior to this bill, New York law required that to establish a sexual harassment claim, a plaintiff must show evidence that the misconduct was “sufficiently severe or pervasive to . . . create an abusive work environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To determine whether misconduct was severe of pervasive, courts examined “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23.
Even if the plaintiff were able to demonstrate that the conduct was severe or pervasive, the employer could raise the Faragher/Ellerth affirmative defense. The Faragher/Ellerth defense could be raised if the employer can show both that they exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
First, the new bill does away with the “severe or pervasive” standard. The removal of the “severe or pervasive” standard now requires employers to address all forms of harassment in the workplace and not just the severe harassment or pervasive harassment. The new standard now allows all claims of discrimination, harassment, and retaliation, regardless of their severity or pervasiveness.
Second, the bill removes the Faragher/Ellerth affirmative defense from defendant employers involved in claims of supervisor harassment. Consequently, employers will not be able to avoid liability for sexual harassment because the victim employee did not file a complaint or follow the employer’s reporting procedures. The New York State Human Rights Law now provides that “[t]he fact that the individual did not make a complaint about the harassment to the employer shall not be determinative of whether the employer shall be liable.”
With the removal of the “severe or pervasive” standard and the Faragher/Ellerth affirmative defense, organizations need to reevaluate their culture and policies to alleviate any ongoing discriminatory, harassing, and retaliatory behaviors and prevent any of the aforementioned behaviors from occurring in the future.