As we previously reported here, the “Stop Sexual Harassment in NYC Act” expanded the reach of the New York City Human Rights Law in the area of gender-based discrimination, including harassment. Among other things, as of April 1, 2019, the law mandates employers with 15 or more employees (which includes independent contractors) in the previous calendar year to conduct annual anti-sexual harassment training to all employees, including managers and supervisors. The law requires employers to train new employees who work more than 80 hours in a calendar year within 90 days of initial hire. Read all about it here.
On October 1, 2018, New York State released final documents and resources in connection with its new sexual harassment prevention requirements. Along with the updated guidelines, the deadline to provide a first round of sexual harassment prevention training has been extended from January 1, 2019 to October 9, 2019. Despite that New York State has extended the deadline for providing sexual harassment prevention training, New York City employers must continue to satisfy the requirements of the Stop Sexual Harassment in NYC Act, which as previously reported, requires all employers with 15 or more employees to conduct sexual harassment prevention training beginning on April 1, 2019. Read more about it here.
Last week, we addressed the looming sexual harassment notice and training requirements affecting all New York State and New York City employers. We also wrote about the pending issuance of public resources containing model policies and other materials that would comply with the New York State mandates. The day after we posted our blog, New York State published a website – Combating Sexual Harassment in the Workplace, which provides resources to employers and employees on sexual harassment. Among other things, the new site contains:
- A model Statewide Sexual Harassment Prevention Policy, which employers are free to adopt;
- Minimum Standards For Sexual Harassment Prevention Policies for employers that intend to draft their own comprehensive sexual harassment policies;
Both New York State and New York City have passed legislation intended to curtail sexual harassment, while at the same time, expanding accountability for such. These laws impact large and small businesses that operate in the State and/or City. Read all about it here.
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.