This bill proposes to increase protections against sexual harassment in the workplace by dramatically changing the long-held standard determining when workplace behavior rises to the level of discrimination in the workplace. Specifically, this bill would amend Section 296 of the Executive Law to specify that harassment is not limited to actions that are “severe and pervasive.”
Since 1993, Courts have held that for harassment to be actionable under federal law the offensive conduct must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21- 22 (1993). This standard requires that the environment be both objectively and subjectively offensive. In other words, for actionable harassment to exist, a reasonable person must be able to find the work environment hostile or abusive, and the victim must actually perceive it to be so.
This approach is supported by long-standing policy of the Equal Employment Opportunity Commission (EEOC). They define unlawful harassment as unwelcome conduct that is based on a persons protected characteristic where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Removing the severe and pervasive standard under New York State would have several negative consequences. First, it would diminish the impact of actual harassment by equating it with a single minor occurrence of bad behavior. By considering all instances of questionable behavior to rise to the level of actual harassment will trivialize legitimate harassment complaints.
Secondly, as New York State law now requires that every complaint of perceived harassment to be investigated – and that investigation to be documented – removal of this standard would create administrative gridlock in employers of all sizes as they spend time and resources investigating all types of workplace behavior whether or not harassment has occurred. OSHA allows for employers to create a culture where workplace hazards are identified and corrected without any additional administrative burden. A harassment free culture would be better served by letting employers address and correct workplace behavior as they occur and before it rises to the long-accepted definition of harassment triggers statutory requirements related harassment investigations.
Thirdly, recent changes to New York Labor Law expand the ability for employees to seek remedies from the Division of Human Rights and in some cases, the EEOC. By lowering the standard for harassment, these agencies can rightly expect a flood of complaints – many minor and easily corrected in the workplace – that would choke the system and interfere with timely resolution of serious, systemic harassment claims.
Finally, removing the severe and pervasive standard will mislead employees to believe that they need to address their complaints through legal action. It’s unlikely any federal court – or the EEOC - will find for an employee subject to behavior that does not rise to the long-standing definition of severe and pervasive.
In addition, this bill looks to amend Section 5-336 of the General Obligations Law the would require all non-disclosure agreements to include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation.
Again, recent changes to New York Law already put significant restrictions on the use of non-disclosure agreements. Adding additional restrictions as described above would essentially end their use in harassment settlements. While this may be the intention of the Executive, doing so will have a dramatic effect on the willingness of employers to enter into timely, beneficial agreements with employees and instead leave employees no recourse but to engage in lengthy, costly litigation. This amendment will do nothing to encourage employers to mitigate the effects of harassment in the workplace and instead create an additional hurdle for employees to navigate on the way to resolution.
The bill also amends Section 201-g of the Labor Law and requires that employers conspicuously post a workplace sexual harassment prevention poster. Again, recent changes to New York Law regarding harassment requires employers notify employees of the existence of a harassment prevention policy and a complaint form. In addition, the Human Rights Law requires the posting of employee rights under the law. Requiring another poster, with redundant information, will serve no appreciative purpose and only cause employers – especially small employers – to fall into unintentional non-compliance as poster change over time.
For the reasons stated above, The Business Council of New York State, Inc., on behalf of its 2,400 members, opposes this bill.