It is now much easier for employees in New York to assert claims of workplace harassment. In the past, in order to bring a claim of workplace harassment in New York, employees were required to demonstrate that the alleged harassment was either severe or pervasive. Employees no longer have to satisfy that burden. In addition, New York’s new statute allows a prevailing plaintiff to recover punitive damages and counsel fees. These remedies were not previously available under New York law. Notably, the focus of the new law is not limited to sexual harassment. Instead, it also covers gender, race, religion, creed, color, national origin, sexual orientation, gender identity or expression, military status, age, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status. Furthermore, employers cannot, other than upon request by the complainant, condition the settlement of harassment claims on the execution of a nondisclosure agreement. The law also contains certain restrictions on the use of mandatory arbitration clauses. It should be noted that, like New York, California has also taken steps to ease the employee’s burden for alleging workplace harassment.
While the Equal Employment Opportunity Commission strongly recommends that all employers conduct interactive harassment prevention training, New York, as well other states such as California, Connecticut, Delaware, and Maine actually require employers to provide interactive training. Massachusetts, Vermont, and Rhode Island encourage employers to provide training. and other states currently have legislation pending regarding harassment in the workplace. Some cities across the country have also instituted regulations aimed at addressing workplace harassment.
There are several steps that employers should take in light of these developments. First and foremost, employers should review their complaint mechanisms to ensure that they are “user friendly” and effective. Employers should audit their employment policies, training materials, arbitration agreements, nondisclosure agreements, and the manner in which they communicate with employees regarding those policies and documents. Employers should also consider taking steps to project top-down support so that employees have confidence in the policies that are put into place.