By Michael Gormley
Gov. Andrew M Cuomo signed into law Monday a measure eliminating a much-maligned legal standard that had required many sexual harassment survivors to prove that the abuse was "severe or pervasive."
The change makes it easier for a complainant to pursue a case. Critics of the "severe or pervasive" standard, adopted because of a federal court decision, said it allowed egregious, one-time abuses and stifled victims from making complaints. Eliminating it was a priority for the new Democratic majority of the State Senate this year.
"Employers across all sectors will be held accountable for addressing all forms of sexual harassment and discrimination in the workplace, and survivors will be given the necessary time to report complaints and seek the justice they deserve," said the bill's co-sponsor, Sen. Alessandra Biaggi (D-Bronx).
Individuals and companies that violate the sexual harassment law can face lawsuits by employees and can be fined by the state. The state can also obtain court orders to stop unlawful practices until the company or individual takes action, require a company to reinstate an employee, restore membership in a labor union or apprenticeship program, and take other sanctions and remediations.
The bill also:
-- Provides that private employers who lose sexual harassment cases can be ordered to pay the survivors' attorney fees.
-- Expands the attorney general's authority to pursue cases of sexual harassment against members of all legally protected classes of people.
-- Prohibits mandatory arbitration for employees accusing employers of discrimination.
-- Prohibits non-disclosure agreements that have been used to keep survivors from speaking publicly or warning colleagues about cases and individuals.
-- Requires employers to provide workers with the company's sexual harassment prevention policies.
-- Provides three times as much time -- three years -- in which to file complaints with the state Human Rights Department.
-- Greatly expands protections for part-time workers.
The law now applies to all employers, including those with four or fewer employees, which had previously been carved out of the statute.
"There has been an ongoing, persistent culture of sexual harassment, assault and discrimination in the workplace, and now it is time to act," Cuomo said. "By ending the absurd legal standard that sexual harassment in the workplace needs to be 'severe or pervasive' and making it easier for workplace sexual harassment claims to be brought forward, we are sending a strong message that time is up on sexual harassment in the workplace and setting the standard of equality for women."
In March 2018, Newsday found that nearly 1,200 sexual harassment complaints from private-sector workers were determined to be valid from 2010 to 2017. Academic researchers and government experts, however, said that may represent only a sliver of the problem. Records also showed the state rejected nearly 3,700 claims, for reasons ranging from a lack of probable cause to missed deadlines to the failure to meet the "severe or pervasive" threshold.
Newsday also has reported that the state paid more than $10 million over nine years to settle 88 cases of sexual harassment, discrimination, and related cases in state government, almost all of which were brought by women reporting groping, come-ons and demeaning treatment.