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Legislative Memo

Frank Kerbein
Director, Center for Human Resources
T 518.4557180
www.bcnys.org

BILL:

S.7848-A (Young)

Support

SUBJECT:

Sexual Harassment

 

DATE:

March 22, 2018

 

In reaction to heightened focus on sexual harassment in the workplace, this legislation would adopt a multifaceted approach to preventing sexual harassment in the workplace, ensure accountability, and combat the culture of silence faced by victims.  The Business Council supports efforts by its members companies to provide a safe work environment free from harassment of any kind.  As such, we SUPPORT the reasonable efforts made by this bill to do just that.

Specifically:

Subpart A.  Requiring state contractors to develop and communicate a policy prohibiting sexual harassment in the workplace and providing annual interactive training is consistent with current best practices as recommended by state and federal agencies.  The US Supreme Court in Burlington Industries vs. Ellerth (1998) outlined an employer’s responsibilities in preventing and resolving harassment complaints.  These obligations include an anti-harassment policy that includes a statement of prohibition, examples of inappropriate behavior, and a process for lodging a complaint, and a prohibition on retaliation. 

In addition, the Supreme Court suggested employers are obligated to conduct a thorough, timely, and objective investigation, protect confidentiality and take corrective action.  There is included in this best practice suggestion a requirement for conducting effective harassment training programs.

Subpart B prohibits employers from voluntarily entering into agreements with their employees that would require the use of arbitration to address sexual harassment claims, but allow the use of arbitration for other work-related issues.   Use of the arbitration process has been proven to dramatically reduce the time to reach resolution and remove financial barriers between employees and resolution, and has been proven to be an effective tool in preventing workplace harassment and improving the work environment. 

Prohibiting the use of arbitration agreements for the purpose of sexual harassment claims, while retaining the right to use these agreements for other work related claims is a compromise acceptable to The Business Council.

Subpart C places broad responsibility and liability on employers for the behavior of their contractors, vendors, consultant or other person providing services.  While employers do not welcome this new statutory liability, it has long been best practice that an employer take immediate and appropriate corrective action when made aware of sexual harassment by nonemployees on employer premises. 

The Business Council takes issue with Subpart D.  This section modifies the civil practice law by expanding the courts’ purview over the use of confidentiality agreements in actions related to sexual harassment.  In the vast majority of cases, the complainant specifically requests anonymity and that the circumstances of the harassment be kept confidential.  We oppose the concept of a court having the ability to overrule the wishes of the employee/claimant. 

Subpart G requires the Department of Labor to produce and distribute model sexual harassment policies and training programs.  Employers welcome guidance in both these areas to help ensure compliance with the expectations of the Department of Labor and the Division of Human Rights.

In spite of the concerns outlined above, The Business Council supports this legislation as a workable, common-sense approach to addressing the issue of sexual harassment in the workplace.