Until recently, executive employment attorneys who dealt primarily with big companies, such as banks, financial institutions and Fortune 1000 corporations, assumed that blatant sexual harassment in the workplace was largely a thing of the past in corporate America other than in small businesses or foreign companies doing business in the U.S.
The #MeToo movement destroyed any such illusion, and now lawmakers are responding accordingly.
A host of new provisions in the laws of New York State and New York City, some of which are effective immediately and others of which will go into effect later this year or next, suggest that sexual harassment in the workplace has entered a new phase of zero toleration. There are changes to both substantive and procedural laws designed to
- educate employees about their rights to resist and report sexual harassment;
- require employers to understand, acknowledge and publicize their obligations to respond swiftly and decisively to complaints by employees of sexual harassment;
- mandate for all but the tiniest businesses a regime of training to stamp out sexual harassment in the workplace through education; and
- provide greater scope for legal remedies against sexual harassment along with new barriers to any “cover up” of improper behavior.
Any executive or business which does not take these legislative responses to #MeToo seriously is likely to have an unpleasant awakening.
Here is a general description of some of the more important changes from our perspective as executive compensation lawyers:
Under a new section of the New York (State) Labor Law, at least two state agencies will create and promulgate a model sexual harassment policy for New York employers, as well as a model sexual harassment training program. The vast majority of New York employers will be required to publicize a sexual harassment policy to their employees; to conspicuously post notice of the policy on the employer’s premises; and to routinely train both executive and non-executive employees in how to avoid sexual harassment in the workplace and how to respond when it does occur. Soon only Rip Van Winkle (assuming he is still slumbering somewhere in the mountains rising from the Hudson River) will be the only person in New York State not to know:
- that subjecting an employee to any form of unwanted sexual conduct, whether or not involving physical contact, is a form of impermissible gender discrimination which will cost employees their jobs and impose meaningful monetary liability on employers who fail in their obligations to respond swiftly and knowledgeably to the sexual harassment complaints of their employees;
- that there are a number of different types of conduct, verbal and non-verbal, physical and non-physical, which can constitute actionable sexual harassment;
- that an employee must be able to make a complaint without fear of retaliation from her (or his) employer or any of the employer’s executives or other employees;
- how to make a complaint of sexual harassment (and who to make it to); and
- that employers must respond to their employees’ complaints with prompt and impartial investigatory procedures leading to appropriate remedial action.
Some of these state law protections are mirrored in amendments to, as well as in certain existing provisions of, the New York City Human Rights Law as well, so that any business operating within the limits of New York City must make certain to comply with items like mandatory posting of rights and remedies against unlawful sexual harassment as a form of employment discrimination, and mandatory anti-sexual harassment training (required for New York City businesses with 15 or more employees beginning April 1, 2019) under both the State and City laws and regulations.
Not all details are clear as yet, so executives of New York companies should themselves receive training in these areas from their own executive employment attorneys after both the applicable State and City agencies publish their final regulations, policies, model forms and trainings.
A variety of other changes in the law, spread among a number of statutory amendments in New York, will reinforce this legislative determination to put more legal “teeth” behind the groundswell of sentiment from #MeToo so as to crack down on sexual harassment.
Some examples are:
- an employer’s legal duty to prevent harassment of its employees by other employees and the employer’s customers, will now expand to consultants of, vendors to, and independent contractors utilized by the employer as well (New York Executive Law);
- there are new limitations on any contractual requirement that employees arbitrate rather than sue on their claims of sexual harassment (New York Civil Procedure Law and Rules), which is particularly important given the current embrace of arbitration remedies by the U.S. Supreme Court;
- the imposition of new limitations on provisions in settlement agreements which would otherwise prevent disclosure of claims of sexual harassment (New York CPLR and General Obligations Law);
- new mandatory 21-day “consideration” and 7-day “revocation” periods in agreements settling sexual harassment claims (similar to those time periods required under Federal age discrimination law), which are designed to keep victims of sexual harassment from being railroaded into resolving their claims without adequate time to find, receive and reflect on supportive and knowledgeable legal advice (New York CPLR and General Obligations Law); and
- a significant expansion of the statute of limitations under New York City law for claims based on sexual harassment.
As executive employment attorneys work to master the complexities of these parallel new legal provisions addressing the problem of sexual harassment in the workplace, their clients should be educated in these new approaches to a problem which has not gone away.