3 Ways Employers Can Prepare for New York’s New Harassment Laws

Broad legislation recently passed by New York state will dramatically weaken employers’ defenses to hostile work environment claims while expanding the statute of limitations, potential damages available, and the classes of individuals protected by the state’s harassment laws.

The sweeping new law — many provisions of which will take effect 60 days after its expected signing by New York Governor Andrew Cuomo — follows similar reforms introduced last year in California. And it comes on the heels of other #MeToo-spurred legislation in the Empire State, the most significant of which required covered employers to implement mandatory anti-harassment policies and sexual harassment prevention training by October 9, 2018.

What’s in the New Law?

Assembly Bill A08421 replaces the “severe or pervasive” standard that has historically been applied to hostile work environment claims under both federal and New York anti-harassment laws. A much lower standard under the new law would allow an affirmative defense only if an employer can demonstrate that harassing conduct does not rise above the level of “petty slights or trivial inconveniences.”

The bill also removes the “Faragher/Ellerth” affirmative defense, which employers have relied on for more than 20 years to avoid liability for a supervisor’s actions when an employee unreasonably fails to take advantage of employer-provided complaint procedures.

These changes mean that New York employees will soon have an easier time proving harassment based on age, race, national origin, sexual orientation, and several other protected characteristics. To prepare for enactment of the new law, employers with operations in New York should (at a minimum) take the following three steps:

Engage In-House or Outside Employment Counsel

A08421 contains a host of provisions that dramatically alter harassment law and place additional burdens on employers. Work with your employment counsel to ensure you have a solid understanding of what it means for your business in New York and review key policies and procedures with them.

Revamp Training

Among other things, anti-harassment training should address conduct that just rises above a petty slight or inconvenience. If you don’t already, make sexual harassment and anti-retaliation training mandatory for all employees, with clear guidance and multiple channels for reporting workplace misconduct. And with the demise of “Faragher/Ellerth” in New York, one message needs to sink in with employees: Harassing conduct in the workplace will not be tolerated.

Consider Your Insurance Options

Employment practices liability (EPL) coverage — which responds to most allegations of harassment, sexual or otherwise — can be an important backstop for employers, particularly as the law continues to fracture at the state and city level. However, many employers still do not purchase standalone EPL coverage, despite it being widely available for the last quarter-century and remaining affordable despite increased sexual harassment claims frequency and severity since #MeToo began in 2017.

New York’s new law is just one example of new and expanding harassment legislation employers must contend with. Now’s the time to reconsider adding EPL to your insurance portfolio and to take stock of your existing workplace practices and training programs.

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Kelly Thoerig

Director General, Director of Civil Liability Coverage Related to Employment Practices