In case you missed our discussion in a March 20, 2018 post, the New York City Council introduced a series of bills last month targeting sexual harassment in the workplace — The Stop Sexual Harassment in NYC Act. The City Council enacted the Act on April 11, 2018 and awaits the Mayor’s signature. These amendments make substantial changes to the New York City Human Rights Law in matters involving sexual discrimination, and impose additional obligations on New York City employers, some of which will be effective immediately. Read my and Melissa Federico’s detailed discussion on these amendments in our latest blog post .
The #TimesUp and #MeToo movements continue to be a force of national reckoning over sexual assault and harassment. This month, the New York City Council harnessed the energy from those social movements and transformed it into legislative action by introducing a series of bills aimed at preventing sexual harassment in the workplace. The Stop Sexual Harassment in NYC Act is a package of eleven bills that would significantly expand the obligations of many employers to prevent sexual harassment.
Mandatory Sexual Harassment Prevention Training
Int. 632 would require that all private employers with 15 or more employees to conduct annual anti-sexual harassment training. The training would be “interactive”, defined as participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, or other participatory forms of training as determined by the commission.
Allegations of sexual harassment and misconduct against business leaders, politicians and artists, have become a front page staple of newspapers across the country. Many are shocked by the allegations and claim to wonder how they could have stayed secret for so long. Despite the numerous cases of sexual harassment filed each year in courts throughout the country, rendering the allegations a matter of public record, a bipartisan group in Congress is blaming the increased use of nonpublic arbitrations for keeping allegations quiet. As a result, they seek passage of a bill intended to prohibit sexual harassment and gender discrimination cases from being resolved privately in arbitration.
The bill, Ending Forced Arbitration of Sexual Harassment, would prohibit businesses from enforcing predispute arbitration agreements of sex harassment and discrimination claims covered under Title VII of the Civil Rights Act of 1964, as amended. A “predispute arbitration agreement” is defined by the bill as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” It targets arbitration agreements that an employee might be asked to sign as a condition of getting hired or remaining employed. The bill does not seek to eliminate predispute arbitration agreements in connection with other types of discrimination claims.
The bill does not address class action waivers, which increasingly have been included in arbitration agreements and require that claims be asserted individually and not on a class basis. Class action waivers can exist outside the context of arbitration, but they are not addressed in the bill. The bill also does not address the use of confidentiality agreements following the settlement of sexual harassment claims.
Last month, Governor Cuomo signed five bills into law that strengthen New York law’s prohibitions against sexual discrimination. Each of these bills form a part of the Women’s Equality Act, and collectively address such areas as equal pay for equal work, sexual harassment, familial status discrimination, attorneys’ fees in sexual discrimination and sexual harassment cases, and reasonable accommodations for pregnant employees. The laws, which are described below, will take effect on January 19, 2016.
Although New York law already prohibits employers from paying women less than men for performing the same work, the bill strengthens such prohibitions by (1) making it unlawful for an employer to prohibit employees from sharing their wage information with each other, thereby enabling employees to determine whether there exists a salary disparity between them and their coworkers; (2) requiring an employer to show that pay differentials between men and women are due to “a bona fide factor other than sex, such as education, training and experience,” and otherwise limiting the circumstances under which pay disparities between men and women might be permitted; (3) increasing the amount of damages in cases of sexual pay disparities based upon sex from 100% liquidated damages to 300%.
Yesterday, the United States Supreme Court issued its ruling in Vance v. Ball State University (No. 11-556), which considered who qualified as a supervisor for purposes of Title VII of the Civil Rights Act of 1964. The determination of this issue was critical because employer liability for unlawful harassment under Title VII is less difficult to establish when the harasser is a supervisor, and not just a coworker of the victim. Justice Samuel Alito wrote for the majority that a harasser is not a supervisor unless he or she has the power to “take tangible employment actions against the victim.”
In Gail Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., et al., 12-3489-cv, April 26, 2013, the plaintiff filed claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging that an affair that one of her brothers had with another worker in their family business created a sexually hostile work environment, and that following her complaints, both of her brothers retaliated against her. The lower court dismissed both claims, and the plaintiff appealed only the dismissal of her retaliation claims.
In 2005, the New York City Council amended the New York City Human Rights Law (“NYCHRL”) to make it clear that courts should construe New York City’s anti-discrimination protections more broadly than federal discrimination protections. Under the Local Civil Rights Restoration Act of 2005, the New York City Council alerted courts to their mistaken assumption that interpretations of the NYCHRL should be coextensive with federal and New York State discrimination law. Consequently, courts began construing the NYCHRL much more broadly and in favor of discrimination claimants. Now, the Second Circuit Court of Appeals (which covers New York, Connecticut and Vermont) has confirmed that the NYCHRL is broader in its protections and application.
In Mihalik v. Credit Agricole Cheuvreaux North America Inc. (11-3361-cv) (April 26, 2013) , the Second Circuit reversed a grant of summary judgment in favor of the employer on plaintiff’s sexual discrimination, sexual harassment, and retaliation claims. Specifically, the Second Circuit found that the District Court had applied federal standards in determining whether the employer was liable under the NYCHRL
The court summed up its conclusions as follows:
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in employment. In 1998, the United States Supreme Court held in Oncale v. Sundowner Offshore Servs., Inc. that sexual harassment also included same-sex harassment and violated Title VII. Recently, the United States Court of Appeals for the Second Circuit, which covers New York, Vermont and Connecticut, reversed a decision of a District Court in the Western District of New York, dismissing a same-sex harassment claim on summary judgment grounds. The Second Circuit concluded that there was ample evidence and issues of fact that could support a jury verdict in favor of the harassed employee.
In Barrows v. Seneca Foods Corp., Jeffrey Barrows alleged that his male supervisor, Victor Sanabria, sexually harassed him by touching his genitals and otherwise creating a hostile working environment on the basis of sex. Among other things, Sanabria referred to Barrows as a “faggot” and leveled vulgar sexual comments at him during work. In addition, Barrows alleged that Sanabria had likewise harassed other men in similar fashion, but not women. The District Court for the Western District of New York had previously dismissed the lawsuit, holding that “there was no evidence that [Barrows] had suffered discrimination because of his sex.” (emphasis in original).
The Second Circuit reversed, noting that under the Supreme Court’s decision in Oncale, the focus on whether sexual harassment has occurred is on “whether members of one sex are exposed to disadvantageous terms or conditions of employment [e.g. hostile work environment] to which members of the other sex are not.” Indeed, this is the very essence of a sexual harassment claim, and it does not matter that the harasser and victim are of the same sex. In addition, in order for the sexual harassment to be illegal, it needed to be “severe or pervasive.” The Second Circuit held that a jury could find that “Sanabria treated women better than men and that, therefore, men were ‘exposed to [a] disadvantageous term[ ] or condition [ ] of employment to which [women] were not.'” (alterations in original).
Following a two-week trial, a jury returned a verdict finding that the employer had subjected a class of female employees to a sexually hostile work environment. The jury awarded compensatory and punitive damages to the class of employees who had been sexually harassed. The court, however, declined to impose injunctive relief to ensure that the sexual harasser would not be in a position to harass women in the future.
The Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont, reversed and held that under the circumstances of the case, injunctive relief was necessary to prevent future sexual harassment.
In Equal Employment Opportunity Commission v. KarenKim, Inc., 11-3309-cv, the Second Circuit determined that the employer had not adopted adequate measures to ensure that the sexual harassment would not recur. The court noted that the sexual harasser and owner of KarenKim were involved in a romantic relationship, which meant that he might still have access to the employees even if he were no longer technically employed as a supervisor. In addition, the court noted that the complaint procedure adopted by KarenKim to prevent future sexual harassment following the lawsuit was ineffective in that it required that complaints be made in writing and within 30 days of the alleged harassment in order to be acted upon. This coupled with the fact that the initial sexual harassment went unchecked for years prompted the Second Circuit to order the New York federal district court to impose the injunctive relief requested by the EEOC.
Today, Governor David Patterson signed into law, the New York Domestic Workers Bill of Rights, which reflects the first sweeping domestic workers’ rights legislation in the nation.
Among other things, the New York law provides for overtime pay to domestic workers, and protection against workplace discrimination and harassment based upon race, gender, sexual orientation, national origin, disability, marital status and domestic victim status. The legislation specifically addresses sexual harassment, which is cited as a major problem for domestic workers in New York.