New York State’s new human rights law was exactly what New York needed. But it can’t work if it isn’t followed. That was what Nina R. Frank of Outten & Golden said to those attending NYSBA’s webinar Friday on “Harassment and Hostile Work Environment Law.”
On Aug. 3, Attorney General Letitia James unveiled her 165-page report that found that Gov. Andrew M. Cuomo engaged in conduct constituting sexual harassment under federal and New York State law. The governor announced his resignation on Aug. 10.
Frank examined the differences between the existing and previous laws on the CLE program, “Harassment and Hostile Work Environment Law” and spoke about how the new law encourages victims to come forward with harassment claims.
The Attorney General’s “extremely comprehensive” report contained 1,371 footnotes, 179 interviews, 74,000 pieces of evidence, and 11 complainants, who were all found to be credible.
The report concluded that the governor violated the law through sexual harassment, failure to report and retaliation. She said the most damning allegation was that the governor groped his executive assistant’s breast under her shirt and touched a state trooper. The executive assistant filed a criminal complaint against him.
“This captured what you need to prove a toxic work environment. It really touches on every aspect on what you would need to prove in a hostile work environment sexual harassment claim,” said Frank. “This was certainly gender-based; he wasn’t touching men this way.”
Other notable findings were that a victim’s “confidential and privileged” personnel records were leaked and that people outside of the governor’s office had reviewed a letter intended to discredit an accuser.
Frank noted that as a plaintiffs’ attorney, she knows how difficult it is for people to come forward and open themselves up to scrutiny.
Studies have shown that people often say that they would come forward if they were sexually harassed. But the opposite is true, with most people failing to confront their harassers or make a formal complaint, Frank said.
Frank said that the governor’s resignation press conference highlighted “the unconscious bias that harassers have that they’re just nice or touchy-feely people.”
Not a Harvey Weinstein
The previous New York State Human Rights Law Standard “used to be a big joke in my office,” said Frank, who described it as “pretty toothless and very difficult to meet.”
Under the law, the harassment must have been “severe and pervasive” and retaliation must have been “materially adverse.” Employers must have had at least four employees. The law didn’t require harassers to pay attorney’s fees or punitive damages, which adversely affected women in low-paying industries. “They really did not have victims in mind when they drafted it.”
Frank said that the “severe and pervasive” requirement made it very difficult for plaintiffs to ever reach a jury. Also of concern was the Faragher/Ellerth Defense, established by the Supreme Court in 1998, which could get an employer out of a liability if it could show that it took reasonable steps to prevent sexual harassment in the workplace or show that the victim of sexual harassment didn’t complain or file a complaint properly.
The new law, signed on Aug. 12, 2019, eliminated the restriction that harassment be “severe or pervasive” in order for it to be legally actionable.
For claims after Oct. 11, 2019, employees must only show that an employer subjected them to “inferior terms, conditions or privileges of employment because of the individual’s membership in one or more protected categories.”
It does include attorneys’ fees and punitive damages. It covers both employees and non-employees, such as interns, independent contractors and gig workers. Employers may face stricter liabilities if the harasser is a supervisor.
It mandated that all employee contracts with non-disclosure agreements include language allowing employees to file a complaint of harassment or discrimination. It also extended the statute of limitations for employment sexual harassment claims filed from one year to three years.
The new law, however, is not retroactive. “I think that a lot more cases are going to survive Motions to Dismiss and Summary Judgment,” said Frank, “People are going be able to get a chance to get a fair hearing.”
She frequently hears, “Well, this isn’t a Harvey Weinstein. I get that a lot. It’s not going to cut it anymore in New York State.”