ALBANY — The State Legislature and Gov. Andrew M. Cuomo have reached an agreement to significantly strengthen the state’s sexual harassment laws for the workplace by no longer requiring that harassment be “severe or pervasive,” Senate officials say.
The “severe or pervasive” standard, which had been established in court rulings, had derailed many sexual harassment claims and prevented others from being filed, supporters of the effort said.
“I know we will be passing that bill,” said Senate Majority Leader Andrea Stewart-Cousins on Friday during public radio’s “Capitol Pressroom.”
She referred to a bill sponsored by Sen. Alessandra Biaggi (D-Bronx), which is identical to a bill in the Assembly sponsored by Assemb. Aravella Simotas (D-Queens).
“I am confident that the Assembly is going to pass a strong and comprehensive bill against harassment in the workplace,” Simotas said in an interview. “And from my conversations with the speaker and his staff, they are committed to the absolute need to change the ‘pervasive and severe’ standard.”
Biaggi said the agreement shows the Senate's new Democratic majority is serious about sexual harassment.
"The first step is to eliminate the 'severe and pervasive' standard once and for all, and make sure that employers are held accountable for creating safe work environments for their employees," Biaggi said in a statement.
Cuomo spokesman Rich Azzopardi said that the governor previously had proposed eliminating the "severe and pervasive" standard and that he will sign the bill once it passes, which could be as early as next week. On Friday Cuomo included the measure among his 10 priorities for the rest of the session.
The state Business Council has opposed eliminating the standard, saying it would unnecessarily broaden the law.
State Division of Human Rights officials who handle many sexual harassment cases said they have had to abide by federal court decisions that declared the conduct had to be severe or pervasive to constitute a legal claim for sexual harassment.
“It’s been a hurdle for a lot of people,” Deborah Zalesne, a professor at the City University of New York School of Law, said. “It was always an issue of, what if there was one incident that could be seen as a clear case of harassment? It wouldn’t be considered pervasive. I think it has been an impediment in those situations.”
She said the MeToo movement also has reinvigorated the debate over what should be considered sexual harassment. “I’m in favor of capturing all the cases in the past that have faced hurdles, but were legitimate cases that might not have fallen under the umbrella of ‘severe or pervasive,’” she said.
The legislative session is scheduled to end June 19. Although a sexual harassment law was passed last year as a result of closed-door negotiations between Cuomo, Assembly Speaker Carl Heastie and then-Senate Majority Leader John Flanagan, many progressive Democrats called the bill weak and criticized the process for excluding any woman leader in the final negotiations.
Simotas and Biaggi pushed their measure this year despite last year’s law, which was then called a landmark measure and required more reporting of claims and mandated training.
“The truth is all the training in the world isn’t going to make a difference if we don’t change the standard we apply when we determine what sexual harassment is,” Simotas said. "Employers have to understand that it has been a major issue for decades. It's time to make sure that they act appropriately."
There was no immediate comment from Heastie.
In May 2018 Newsday reported that records showed nearly 1,200 sexual harassment complaints from the private sector were upheld from 2010 to 2017, but a long-standing court ruling that required the behavior to be “severe or pervasive” led to the rejection of many other claims.