New York City’s New Law Seeks to Address and Prevent Workplace Sexual Harassment

by | May 25, 2018 | Employment Law, Gender Discrimination, Harassment

On May 9, 2018, New York City Mayor Bill DeBlasio signed the Stop Sexual Harassment in NYC Act (the “Act”), amending the New York City Human Rights Law (“NYCHRL”) to proactively combat sexual harassment in the workplace. The Act, passed by the New York City Council in the wake of the #MeToo movement, creates new obligations for NYC-based employers to prevent and address workplace sexual harassment, and will apply to all New York City employers, including contractors. The new laws are a strong and commendable reaction to the growing national dialogue about sexual harassment, and the Act is a victory for NYC workers.

The NYCHRL is already considered one of the most robust human rights and anti-discrimination laws in the nation. Indeed, in applying the NYCHRL alongside similar New York state and federal statutes, courts are required to interpret state and federal civil rights statutes “as a floor below which the City’s Human Rights law cannot fall,” and must construe the provisions of the law “broadly in favor of discrimination plaintiffs to the extent that such a construction is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (citations omitted). The NYCHRL considers sexual harassment a form of gender-based discrimination, and the law is particularly protective of victims of sexual harassment in the workplace. Under federal and state civil rights laws, a victim of sexual harassment must show that the conduct at issue was “severe or pervasive” to state a claim. In contrast, under the NYCHRL, a plaintiff’s burden is simply to show that he or she was “treated less well than other employees because of [] gender,” and that the alleged misconduct involved more than “petty slights or trivial inconveniences.” Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27 (1st Dep’t 2009).

The new Act seeks to further bolster this expansive law. Crucially, although other anti-discrimination provisions of the NYCHRL apply to employers with four or more employees, the Act makes claims of gender-based harassment available to all NYC employees, regardless of the number of employees in their workplace. One portion of the Act mandates that employers with at least 15 employees conduct annual anti-sexual harassment training for all employees, including for those in supervisory and managerial positions. The Act anticipates that such training will include online interactive training modules created by the NYC Commission on Human Rights. This training will address examples of sexual harassment, explain internal complaint processes, note examples of prohibited retaliation, and provide information about bystander intervention. All new employees will be required to undergo such training within 90 days of being hired, and all employers will be required to keep a record of all trainings for at least three years.

The Act also directs the NYC Commission on Human Rights to create a new poster detailing an employee’s rights and responsibilities under the Act and imposes notice requirements for employers to display the poster conspicuously in workplaces. Additionally, the new law creates several reporting and assessment mechanisms to monitor sexual harassment policies and prevention efforts. The law also extends the statute of limitations for filing sexual harassment claims from one to three years from the time of the alleged harassment.

The Act follows budget initiatives recently passed by New York State Legislature and New York Governor Andrew Cuomo that similarly require the creation of anti-harassment policies and training programs in the workplace, and expand the ambit of the New York State Human Rights Law to contractors. New York City employers will be obliged to comply with the requirements of both the NYC and NY State laws.

While these measures indicate that state and local legislatures are aware of the prevalence of sexual harassment in the workplace, the question remains whether new training and notice requirements will have any real impact on the pervasiveness of gender-based harassment. As the Equal Employment Opportunity Commission noted in 2016, although training is “an essential component of an anti-harassment effort,” existing training programs such as those already in place at large corporations, standing alone, have not decreased incidents of gender-based workplace discrimination. In order to truly combat workplace harassment, it is clear that employers must also endeavor to foster an organizational culture in which such harassment is not tolerated, and ensure that employees are held accountable for misconduct.