A Huge Game Changer! NY Joins CA and Eliminates “Severe or Pervasive” Standard in Workplace Sexual Harassment Cases, Marking Next Level of #MeToo Movement
“Workplace sexual harassment is widespread, with studies estimating that anywhere from almost a quarter to more than eight in ten women experience it in their lifetimes (Feldblum and Lipnic 2016). Sexual harassment and assault at work have serious implications for women and for their employers. Women who are targets may experience a range of negative consequences, including physical and mental health problems, career interruptions, and lower earnings. In addition, sexual harassment may limit or discourage women from advancing into higher paid careers and may contribute to the persistent gender wage gap. It may also intersect with other forms of discrimination and harassment on the basis of race or ethnicity, sexual orientation, age, or disability.”
For years, I have been advising women who have sought my expertise regarding workplace sexual harassment complaints about the high bar of evidence required by the law under the “severe or pervasive” standard. This historic standard requires a showing of severe sexual workplace harassment or otherwise a pattern of such pervasive harassment that would create a hostile or intimidating workplace environment. The types of behavior that would satisfy such a rigorous standard were necessarily intensely shocking and often far worse than the kind of actions that men and women often experience in a hostile workplace environment, therefore making it tremendously difficult if not impossible to sue for such wrongs. As a result, the victims in such employment harassment situations were often either terminated, had their careers sidelined or stalled, or were bullied into signing secret non-disclosure and settlement agreements. So after having to hear sexist or pornographic jokes at work, be exposed to such images on colleagues’ work computers, or being inappropriately touched at work, victims of sexual harassment at work would often be further targeted as unsuitable for the job, told to stop complaining, and generally railroaded out of their careers.
“Now an online survey launched in January by a nonprofit called Stop Street Harassment offers some of that missing evidence. It found that 81 percent of women and 43 percent of men had experienced some form of sexual harassment during their lifetime.”
- “A New Survey Finds 81 Percent Of Women Have Experienced Sexual Harassment”, NPR, Feb. 21, 2018.
A Single Incident of Workplace Sexual Harassment Suffices
Last year, California passed a number of laws that became effective at the start of 2019 and seek to end this despicable legal framework. For example, SB 1300 became codified as California Government Code sec. 12923 and makes even a “single incident” of such wrongful conduct a violation of the law against workplace sexual harassment. No more inappropriate touching, sexist commentary, or pornographic videos at work! Certainly such a standard is long overdue, and employers and workplace creeps had better heed the call of a new day.
“A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”
No More Secret Settlements of Workplace Harassment Complaints
California also passed a bill last year prohibiting secret settlements which try to hush workplace sexual harassment victims and save face for corporations harboring sexual harassers.
“1001. (a) Notwithstanding any other law, a provision within a settlement agreement that prevents the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited:
(1) An act of sexual assault that is not governed by subdivision (a) of Section 1002.
(2) An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
(3) An act of workplace harassment or discrimination based on sex, or failure to prevent an act of workplace harassment or discrimination based on sex or an act of retaliation against a person for reporting harassment or discrimination based on sex, as described in subdivisions (h), (i), (j), and (k) of Section 12940 of the Government Code.
(4) An act of harassment or discrimination based on sex, or an act of retaliation against a person for reporting harassment or discrimination based on sex, by the owner of a housing accommodation, as described in Section 12955 of the Government Code.”
This is a very big deal, and there’s more! Two other bills which passed last year expand the application of laws against sexual workplace harassment to include in their domain a host of additional professional relationships such as “investor, elected official, lobbyist, director, and producer” as well as legal protections for in-home caretakers.
New York Follows California’s Lead in #MeToo Legislation
On June 19, 2019, New York State’s legislators passed a law that also gets rid of the draconian “severe or pervasive” standard and utilizes the more sensible “single incident” approach as described above; and NY lawmakers also made secret settlements illegal, just like California. This is truly wonderful news!
“Senate bill S.6577, sponsored by Senator Alessandra Biaggi, will:
Remove the “severe or pervasive” standard from discriminatory and retaliatory harassment cases.
Extend the statute of limitations to three years for sexual harassment complaints under the Human Rights Law.
Prohibit non-disclosure agreements to bar someone from speaking out against discrimination.
Expand protections of domestic workers and independent contractors to include all forms of harassment.
Authorize the award of punitive damages and attorney fees in employment discrimination actions.
Push back the Faragher-Ellerth defense by indicating that the fact that an individual did not make a complaint about the harassment to their employer, licensing agency, employment agency or labor organization will not be determinative of whether such employer, licensing agency, employment agency or labor organization is liable. It also prohibits mandatory arbitration of discrimination claims.
Require employers to provide their employees with a notice of sexual harassment prevention policies in the employees’ primary language.”
- “Senate Strengthens New York’s Sexual Harassment Protections”, New York State Senate, June 19, 2019
Along with such long overdue protections against workplace sexual harassment, the NY State legislators also passed a law increasing the statute of limitations for 2nd degree rape to 20 years and 3rd degree rape to 10 years. The next step of course includes expanding this kind of legislation across the country, one state at a time and also at the federal level.
Mandatory Arbitration Agreements Silence Workplace Sexual Harassment Victims
There is no limit on how low corporations will go to put profits over people. That’s why the law exists — to make sure regulations enforce codes of decency that corporations will gladly violate. We should now turn our sights on making illegal the practice of many corporations of including language in their mandatory arbitration agreements to prevent lawsuits and mandate private arbitration of all employment related problems include sexual harassment:
“Millions of American workers have given up their right to go to court just to earn a paycheck. They can’t sue their employer for sexual harassment, or for racial discrimination, or for stealing their wages, or for nearly anything else. That’s because these employees signed so-called mandatory arbitration agreements that are the new normal in American workplaces. These agreements are often buried in a stack of hiring documents that managers require new employees to sign. They usually have a legalese name, such as “Alternative Dispute Resolution Agreement.” […] The rise of mandatory arbitration has made it nearly impossible for workers to seek legal justice for wage theft, overtime violations, and job discrimination. This secretive system also has the potential to hamper the #MeToo movement. Women are coming forward, often for the first time, with stories of widespread sexual harassment at work, only to discover that they’ve been shut out of the court system because they signed an arbitration agreement. The practice is particularly harmful to women and black employees, as they are more likely to be subjected to arbitration agreements because they make up a large share of workers in the industries that require arbitration the most: education and health care.” [Emphasis added.]
- “There’s a good chance you’ve waived the right to sue your boss”, Vox, Sep. 7, 2018.
These kinds of practices and policies protect employers from their own negligent hiring, training, supervision, and retention of employees who have violated sexual harassment and discrimination laws in the workplace. By requiring all potential employees to sign mandatory arbitration agreements, employers are telling all potential hires that they cannot work at their company unless they sign away their rights to fully litigate an employment dispute in court where they have the right to file Motions and conduct Discovery to gather all sources of evidence that may benefit their claim. In mandatory arbitration proceedings however, a party is deprived of such tools of court litigation like the ability to file Motions and conduct Discovery, and their rights to an appeal are substantially reduced as well — often only being able to appeal an arbitrator’s decision where a rare Due Process violation has occurred. While arbitration can be a great path for a speedy and cost-effective resolution of a dispute, making it mandatory is the central problem. It’s fine when it’s voluntary arbitration, but mandatory arbitration agreements take away the employee’s choices particularly in a time when their source of income, self-esteem, and sense of safety have all been fundamentally threatened by a graven issue like workplace sexual harassment, intimidation, and abuse. That’s outrageous, and it must not stand.
#MeToo fighters — onwards!
