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The New York Legislature recently passed an anti-sexual harassment law which is likely to make it easier for workers to win their lawsuits. The Bill, which was championed by Governor Andrew Cuomo and is now awaiting his signature, does away with the requirement that the alleged misconduct be “severe or pervasive” in order to constitute illegal harassment. That requirement had long been the standard in sexual harassment cases based upon a United States Supreme Court case from 1986. (Meritor Savings Bank v. Vinson,477 U.S. 57, 60 (1986)). Instead, plaintiffs must now show the alleged harassment rises above “petty slights or trivial inconveniences.” This change is a substantial benefit to the aggrieved employee and lessens its burden of proof while increasing the burden on the employer. As a result, many more lawsuits will survive a motion to dismiss.

Additionally, the legislation eliminates the requirement that an employee must first register a complaint with the employer regarding the improper conduct before seeking redress in the courts. Previously, employers could avoid being subject to a claim for harassment if they could demonstrate they exercised reasonable care to correct or prevent sexual harassment, but the accuser failed to take advantage of these corrective opportunities. This change in the law recognizes the reality that if an employee is harassed by his or her supervisor there really is nowhere for the employee to go to register the complaint without the fear of retaliation.

Notably, the legislation applies not only in sex-based harassment but also harassment based on age, race and national origin among other areas.

Several New York Human Rights Law protections enacted last year will now apply to the new law as well, including prohibiting employers from requiring workers to sign non-disclosure agreements as a condition of any settlement of a claim and blocking employers from requiring that employees agree to arbitrate employment discrimination and harassment claims.

The likely result of these changes is that more harassment claims will be found to be viable and employers will find it harder to prevail in those instances where the claim actually goes to Court. As such, employers must review and revise their anti-harassment policies and trainingprograms both to comply with applicable law and to be certain that their employees understand the consequences of a violation of the law. In order to emphasize the seriousness of this issue, in-person training will likely become more prevalent than the typical online or video programs now used by many employers. In-person training provides more opportunities for employee engagement which can help ensure the effectiveness of the training. Company managers will also need to be even more vigilant in addressing sexual harassment claims because failure to do so is more likely to result in their employer being sued. Employers must also take care that they or their managers avoid any conduct that could result in punitive damages.

If you feel you have a claim against your company or you are an employer and would like one of our attorneys to review your company policies, please contact usto discuss your matter.

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