March 06, 2019
On February 13, 2019, at the request of the New York State Legislature, Weil Employment Litigation partner Gary D. Friedman appeared before the Legislature’s Joint Senate and Assembly Public Hearing on Sexual Harassment in the Workplace to give expert testimony from the employers’ perspective on workplace sexual harassment issues. The live hearing marked the first time in 27 years that the New York Legislature held a public hearing on the subject, and to no one’s surprise, it attracted a large crowd of legislators, industry experts, and the press. Testifying witnesses included Kevin Berry, the New York District Director of the EEOC, Roberta Reardon, Commissioner of the New York State Department of Labor, Dana Sussman, Deputy Commissioner of the New York City Human Rights Commission, survivors of workplace sexual harassment, and legal, academic, and policymaking authorities on these issues.
During this televised hearing, a variety of stakeholders provided testimony on issues that have become central to cultural discourse, and targeted for action by legislatures across the country – including in New York’s recently enacted workplace sexual harassment laws contained in Governor Cuomo’s 2018/2019 budget legislation.
Notably, Mr. Friedman, who submitted testimony (linked here) outlining a range of material challenges for employers posed by the #MeToo-inspired NY budget legislation, was the only representative from the business community asked to testify at the hearing. In his testimony, Mr. Friedman identified a number of challenges and ambiguities in the legislation, and explained, using hypotheticals and illustrative examples, how certain provisions governing nondisclosure agreements, protocols for investigating complaints, requirements for employee training, and the mechanisms for dispute resolution, could be counterproductive to eradicating workplace sexual harassment.
While it remains to be seen how the Legislature will address all of the testimony provided during the nearly 12 hours of hearings, the New York legislators’ comments and lines of questioning give a strong indication that the Legislature will attempt to take some type of action this term – either via a budget amendment or through the normal legislative process – which expands the protections for employees who allege claims of workplace sexual harassment. Among the issues that the Legislature is currently considering addressing are the following:
- Eliminating the “severe or pervasive” standard under Title VII in favor of the lower New York City standard for sexual harassment: being treated “less well than” other employees on account of gender;
- Eliminating or limiting the use of the Faragher/Ellerth defense in response to claims of hostile work environment sexual harassment;
- Prohibiting the use of liquidated damages for violations of confidentiality, nondisclosure and/or non-disparagement provisions in settlement agreements involving claims of sexual harassment;
- Increasing the statute of limitations period for sexual harassment claims;
- Establishing an enforcement mechanism and providing civil remedies for violations of the training, policy and investigations provisions in the budget legislation;
- Providing for punitive damages under state law; and
- Providing sexual harassment complainants with a mechanism for removing information about themselves from the Internet relating to sexual harassment complaints or investigations after a certain period of time.
We will continue to monitor closely legislative and policy developments in New York and nationally, but employers should expect more changes in the coming year.