Proposed changes to state discrimination and harassment law could drastically increase the number of sexual harassment claims filed against employers, labor lawyers say.
A measure passed by lawmakers in June eliminates the hard-to-prove standard that harassment must be "severe or pervasive" to bring a claim, expanding employees' opportunities to take legal action.
The old language was “a very high standard to meet,” said Jessica M. Baquet, an employment attorney at Jaspan Schlesinger LLP in Garden City who represents companies. Under the existing law, “plaintiffs couldn’t win those hostile work environment claims unless they could show that the harassment was severe and pervasive.”
Under the new measure, which has yet to be signed by Gov. Andrew M. Cuomo, the standard would be lowered to include behavior that rises above what “a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
The bill is under review by the governor, a spokesman in Cuomo's office said. The governor is expected to sign it.
Much of the discussion over the new legislation has been on the bill’s impact on sexual harassment claims. But Baquet said one of the key take-aways for employers is that the bill applies to all protected categories, including race, religion, sexual orientation and gender identity.
“The attention here is on sexual harassment because of the #MeToo movement, but this is even bigger than that,” she said. “This is actually lowering the bar on all types of unlawful discrimination. Employers need to know that. That is critical.”
If signed into law, the new legislation also would introduce other changes in favor of employees. It would extend the time limit employees have to file a sexual harassment claim with the state's Division of Human Rights, limit the employer defense that a harassing behavior was never brought to the company’s attention, and expand the ban on arbitration agreements beyond sexual harassment claims to other forms of discrimination.
The lower standard of proof for harassment remains "open to interpretation," and courts will have to rely heavily on precendents set in New York City, where the lower standard has already been in effect, said Baquet.
Under the current New York State standard, which mirrors the federal stance, many attorneys avoided taking on clients with harassment claims because of the high burden of proof, which would often end in cases being thrown out earlier in the process, said Marijana Matura, a labor attorney at Shulman Kessler LLP in Melville who represents employees in discrimination and harassment cases.
The language in the new law represents “significantly less of a standard for employees to have to show,” Matura said. “It makes the initial burden of proof a lot easier to get over.”
With that lower standard, “it’s going to be more difficult for employers to avoid these claims,” she said.
“In these cases, typically, the employer would fight more because they knew it was a high burden of proof and [they] were willing to roll the dice,” Matura said, adding that with a lower standard likely comes an increased number of claims. “Now that’s going to be a difficult gamble for employers to take, and I think you’re going to see a lot more settlements earlier on in these cases.”
Sexual harassment in the workplace has long been an obstacle to women’s advancement in the business world, said Ivy Algazy, chief executive of the Ivy Network, a provider of women’s leadership programming and education.
“If I believe I am being sexually harassed and I’m not comfortable with it, who do I tell?” said Algazy, who oversees the Women's Collaborative, an educational group supported by the Long Island Association. “These are the kinds of things that women think about and has held us back for generations.”
While workplace harassment is egregious in and of itself, Algazy said, cultural tropes about the way business is done have long left women out of the equation and contributed to exclusionary work environments.
"For many years in the corporate world, it used to be you took your clients out to a steak dinner and a strip club," she said, "Where do women fit into that?”
Ultimately, Algazy said, cultural shifts are going to be needed, and "we have to start including our male colleagues in the conversation. A true sexual harassment training program is of the upmost importance.”