This bill would dramatically change the long-held standard for determining when workplace behavior rises to the level of unlawful discrimination. 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). It defines 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.
Disbanding the severe and pervasive standard under New York State law would have several negative consequences, for employers and employees alike.
First, it would diminish the impact of actual harassment by equating it with a single minor occurrence of bad behavior. By allowing all instances of questionable behavior to rise to the level of actual unlawful harassment will trivialize legitimate harassment complaints.
Second, as New York State law now requires that every complaint of perceived harassment be investigated by the employer – and that investigation to be documented – removal of this standard would create a significant increase in administrative response by employers of all sizes as they spend time and resources investigating all types of workplace behavior whether or not unlawful harassment has occurred.
Third, 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 is likely that federal courts and the EEOC will continue to apply some kind of subjective standard to when bad workplace behavior reasonably crosses the line to be unlawful workplace harassment.
This bill also seeks to remove a key affirmative defense of liability long made available to employers for harassment occurring between and among employees. Often, harassment occurs between non-supervisory employees out of sight or without the knowledge of their supervisors or the employer. Since the Supreme Court’s decision in Ellerth (1998), employers have been provided an affirmative defense from liability if they show they could not have known about such harassment and therefore were unable to stop it from occurring.
Accordingly, best practice required that employers adopt harassment prevention policies that encouraged employees to report all incidents of harassment and required all supervisors to report harassment. These best practices, supported by recommendations from the EEOC and adopted in the 2018 New York State sexual harassment reforms, require that these polices provide for “multiple avenues of complaint.” Should a policy not include multiple avenues of complaint, employers would not have the affirmative defense available to them. Nothing in this bill would enhance an employee’s right of redress beyond what is in current law.
Since 1970, the Occupational Safety and Health Act (OSHA) has required that employers provide a workplace free from recognized hazards likely to cause harm to employees. The success of OSHA relies on employers and employees creating a culture of safety by encouraging employee participation in creating such a culture. Likewise, a harassment free culture would be better served by supporting employer/employee cooperation and dialogue in the workplace. This bill would undermine that goal by actually encouraging employees to seek third party intervention regarding workplace behavior that may or may not be slightly more than “petty slights and trivial annoyances.”
For the reasons stated above, The Business Council of New York State, Inc. opposes this bill.